Bad footage: Surveillance laws, police misconduct, and the internet

Georgetown Law Journal

Volumn 100, Issue 4, 2012, Pages 1399-1435

  Robinson, Dustin F ^a  

^a GEORGETOWN UNIVERSITY LAW CENTER   (United States)

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[No Author keywords available]

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EID: 84860166694     PISSN: 00168092     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (62)

1. Flashback: Rodney King and the LA Riots, BBC NEWS (July 10, 2002, 16:59 GMT), http://news.bbc.co.uk/2/hi/americas/2119943.stm.
2. Michael Goldstein, The Other Beating: Fifteen Years After His Video of Rodney King Reached the World, George Holliday Looks Back on How that Night Has Hurt Him, L.A. TIMES, Feb. 19, 2006, http://www.latimes.com/la-tm-holidayfeb19, 0,581354.story.
3. For a particularly sensational example, recall the Linda Tripp-Monica Lewinsky interactions. Tripp violated the Maryland statute by recording a phone conversation with Lewinsky without her consent, and she was indicted. The prosecutors later dismissed the charges in light of the difficulties that would be encountered in procuring Lewinsky's testimony. See Robert L. Jackson, No Criminal Prosecution in Md. Case Against Linda Tripp, L.A. TIMES, May 25, 2000, http://articles.latimes.com/2000/may/25/news/mn-33924.
4. For a greater explanation of the Hyde incident as well as a thorough analysis of Massachusetts wiretapping law, see Lisa A. Skehill, Note, Cloaking Police Misconduct in Privacy: Why the Massachusetts Anti-Wiretapping Statute Should Allow for the Surreptitious Recording of Police Officers, 42 SUFFOLK U. L. REV. 981 (2009).
5. Harvey Silverglate & James Tierney, Echoes of Rodney King, BOSTON PHOENIX, Feb. 21, 2008, http://thephoenix.com/boston/news/56680-echoes-of- rodney-king/. Notably, Glik was a practicing lawyer at the time. Id.
6. Glik v. Cunniffe, 655 F. 3d 78, 82 (1st Cir. 2011); Danielle Riendeau, Major News About the Glik Case!, MASS RIGHTS BLOG (June 8, 2010, 4:15 PM), http://www.massrightsblog.org/2010/06/major-news-about-glik-case.html.
7. See Don Terry, Eavesdropping Laws Mean That Turning On an Audio Recorder Could Send You to Prison, N.Y. TIMES, Jan. 23, 2011, at A29.
8. Jason Meisner, Eavesdropping Law Unconstitutional, Court Says, CHI. TRIB., Mar. 3, 2012, http://articles.chicagotribune.com/2012-03-03/news/ct-met- eavesdropping-law-ruling-0303-20120303-1-eaves-dropping-statute-police-internal- affairs-investigators-innocent-conduct;
9. Jason Meisner & Ryan Haggerty, Woman Who Recorded Cops Acquitted of Felony Eavesdropping Charges, CHI. TRIB., Aug. 25, 2011, http://articles. chicagotribune.com/2011-08-25/news/ct-met-eavesdropping-trial-0825-20110825-1- eavesdropping-law-police-officers-law-enforcement.
10. Id. The district court's reasoning seems to be partially based on the ACLU's explicit intent to record many conversations to which its members are a nonparty (which would violate even a one-party-consent statute). Id. The ACLU filed an appeal which is currently pending in the Seventh Circuit. See Allie Carter, Appeal Filed in ACLU v. Alvarez, ACLU OF ILL. (Apr. 20, 2011, 4:43 PM), http://www.aclu-il.org/appeal-filed-in-aclu-v-alvarez/.
11. Oral Argument at 7:57, ACLU v. Alvarez, No. 11-1286 (7th Cir. Sept. 13, 2011), available at http://www.ca7.uscourts.gov/fdocs/docs.fwx?caseno=11- 1286&submit=showdkt&yr=11&num=1286;
12. see also Eric E. Johnson, Judge Posner Worried By Mic-Wielding Bloggers, BLOG LAW BLOG (Sept. 27, 2011, 8:33 AM), http://bloglawblog.com/blog/?p=3448.
13. Annys Shin, Traffic Stop Video on YouTube Sparks Debate on Police Use of Md. Wiretap Laws, WASH. POST, June 16, 2010, http://www.washingtonpost.com/wp- dyn/content/article/2010/06/15/AR2010061505556.html.
14. Howard M. Wasserman, Orwell's Vision: Video and the Future of Civil Rights Enforcement, 68 MD. L. REV. 600, 600 (2009).
15. See Dina Mishra, Comment, Undermining Excessive Privacy for Police: Citizen Tape Recording To Check Police Officers' Power, 117 YALE L.J. 1549, 1552-54 (2008).
16. See Skehill, supra note 61, at 997; see also Jason Trahan & Tanya Eiserer, In-Car Video More Likely To Clear Police Officers Accused of Misconduct, Experts Say, DALLAS MORNING NEWS, Aug. 15, 2009, http://www.wfaa.com/news/local/64504807.html.
17. The literature on use of video in the courtroom is wide and varied. See, e.g., Jessica Silbey, Evidence Verité and the Law of Film, 31 CARDOZO L. REV. 1257, 1257-59 (2010);
18. See JEREMY BENTHAM, THE PANOPTICON, THE PANOPTICON WRITINGS (Miran Božovič ed., Verso 1995) (1791).
19. See MICHEL FOUCAULT, DISCIPLINE AND PUNISH: THE BIRTH OF THE PRISON 200-01 (Alan Sheridan trans., Pantheon Books 1977) (1975).
20. See Steve Mann et al., Sousveillance: Inventing and Using Wearable Computing Devices for Data Collection in Surveillance Environments, 1 SURVEILLANCE & SOC'Y 331, 332 (2003);
21. see also David A. Harris, Picture This: Body-Worn Devices (Head Cams) as Tools for Ensuring Fourth Amendment Compliance by Police, 43 TEX. TECH L. REV. 357, 360 (2010).
22. The more technology one incorporates into his literal person, the closer one comes to achieving cyborg status-the legal implications of which are not yet fully developed. See, e.g., Gowri Ramachandran, Against the Right to Bodily Integrity: Of Cyborgs and Human Rights, 87 DENV. U. L. REV. 1, 11-12 (2009) ("For instance, in the case of a pacemaker or a robotic arm, humans are merging with inorganic property of the sort that is routinely and uncontroversially commodified ⋯. In the long run, as these mergers between people and property become more common, sustaining different formal legal statuses for people and other objects may appear more and more arbitrary.").
23. Finlo Rohrer, When All Video All, BBC NEWS (Apr. 21, 2009, 12:26 GMT), http://news.bbc.co.uk/2/hi/uk-news/magazine/8010098.stm.
24. FITWATCH, http://www.fitwatch.org.uk/about/ (last visited Dec. 19, 2011). FIT takes video presumably for purposes of identifying those most upsetting to governmental interests, though FIT would argue the video capture is for safety purposes.
25. See BERKELEY COPWATCH, http://www.berkeleycopwatch.org/ (last visited Oct. 15, 2011).
26. Andrew John Goldsmith, Policing's New Visibility, 50 BRIT. J. CRIMINOLOGY 914, 930 (2010).
27. Wikipedia: About, WIKIPEDIA, http://en.wikipedia.org/wiki/Wikipedia:About (explaining the way Wikipedia works and how users can contribute to the online encyclopedia) (last visited Oct. 25, 2011).
28. See, e.g., RICHARD EPSTEIN, CASES AND MATERIALS ON TORTS 42 (9th ed. 2008) (referring readers to Wikipedia for further information on Abigail Alliance for Better Access to Developmental Drugs v. Von Eschenbach, 495 F. 3d 695 (D.C. Cir. 2007)).
29. In a beautiful act of symmetry, the online article also urges readers to see Epstein's casebook. Abigail Alliance v. Von Eschenbach, WIKIPEDIA, http://en. wikipedia.org/wiki/Abigail-Alliance-v.-von-Eschenbach (last visited Nov. 7, 2011).
30. See iReport, CNN, http://ireport.cnn.com/ ("iReport is a user-generated section of CNN.com. The stories here come from users. CNN has vetted only the stories marked with the 'CNN' badge.") (last visited Oct. 25, 2011).
31. See Getting Started with Comments, GAWKER, http://help.gawker.com/forums/ 20054216-getting-started-with-comments#popular (last visited Mar. 3, 2012);
32. Frequently Asked Questions, HUFFINGTON POST, http://www.huffingtonpost. com/p/frequently-asked-question.html (last visited Mar. 3, 2012).
33. See Julie Zhuo, Op-Ed., Where Anonymity Breeds Contempt, N.Y. TIMES, Nov. 29, 2010, http://www.nytimes.com/2010/11/30/opinion/30zhuo.html.
34. Saturday Night Live: "I Didn't Ask for This" (NBC television broadcast Oct. 30, 2010).
35. Police Officer Guilty in Bike-Shove Case, WALL ST. J. METROPOLIS BLOG (Apr. 29, 2010, 3:57 PM ET), http://blogs.wsj.com/metropolis/2010/04/29/after- days-of-deliberation-jury-convicts-officer-in-bike-shove-case/. Police brutality charges were not brought, but perjury charges were brought: The officer lied under oath that he pushed the bicyclist as he veered into him, but the video shows that the officer charged headlong at the bicyclist. Id.
36. Oren Yaniv, Patrick Pogan, NYPD Cop Who Pushed a Critical Mass Cyclist to the Ground, Gets No Jail Time, NY DAILY NEWS, July 14, 2010, http://articles.nydailynews.com/2010-07-14/news/27069993-1-nyped-cop-jail-time- christopher-long.
37. See Charles Krauthammer, Op-Ed, Don't Touch My Junk, WASH. POST, Nov. 19, 2010, http://www.washingtonpost.com/wp-dyn/content/article/2010/11/18/ AR2010111804494.html.
38. See Eunic Ortiz, Students Stunned-and Tired-About Taser Incident, CNN (Sept. 19, 2007), http://articles.cnn.com/2007-09-19/us/cnnu.tase-1-taser- incident-female-officer-police-officers?-s=PM: US;
39. Sarah Lai Stirland, "Don't Tase Me, Bro!" Jolts the Web, WIRED (Sept. 19, 2007 2:20 PM), http://www.wired.com/threatlevel/2007/09/dont-tase-me- br/.
40. See Cindy George & Brian Rogers, Video Appears to Show HPD Beating Teen Burglar, HOU. CHRON., Feb. 2, 2011, http://www.chron.com/disp/story.mpl/ metropolitan/7410587.html. Holley was arrested in a brutal manner by Houston police officers. A tape of the arrest was made by a surveillance camera. A legal battle ensued in which media organizations demanded that the tape be released to the public on First Amendment grounds, but the judge disagreed for fear of rendering a fair trial impossible for the police officers who were charged with violating a suspect's civil rights. Id. Even a bystander could have made the recording legally, as Texas is a one-party consent state. TEX. PENAL CODE ANN. § 16.02 (West 2011).
41. See Houston Police Officers Kicking Beating Handcuffed Teen, POLICE CRIMES.COM (Apr. 29, 2010), http://policecrimes.com/forum/viewtopic.php?t=8614 (last visited Oct 25, 2011).
42. Adrian Chen, Postal Worker Secretly Films Customer's Racist Rant, GAWKER (Nov. 11, 2010, 11:55 PM), http://gawker.com/#!5688054/postal-worker-secretly- films-customers-racist-rant.
43. Adrian Chen, Racist Mailman Hater Placed Under Police Protection, GAWKER (Nov. 13, 2010, 1:25 PM), http://gawker.com/#!5689166/racist-mailman-hater- placed-under-police-protection.
44. Adrian Chen, Meet the Volvo-Driving Racist Mailman Harasser, GAWKER (Nov. 12, 2010, 3:25 PM), http://gawker.com/#!5688566/meet-the-volvo+driving-racist- mailman-harasser.
45. 4CHAN, http://www.4chan.org (last visited Mar. 4, 2012).
46. Jenna Wortham, Founder of a Provocative Web Site Forms a New Outlet, N.Y. TIMES, Mar. 13, 2011, at B1.
47. Id. But see Rules, 4CHAN, http://www.4chan.org/rules (last visited Oct. 25, 2011) (listing rules that users must follow when posting).
48. Ravi Somaiya, Hackers Shut Down Government Sites, NY. TIMES, Feb. 2, 2011, http://www.nytimes.com/2011/02/03/world/middleeast/03hackers.html.
49. One of the symbols embraced by the group is a Guy Fawkes mask, as popularized in the film V for Vendetta, as it represents the power of righteous individuals who engaged in fighting tyranny. See Michael Stone, November 5: Anonymous Celebrates Guy Fawkes Day, EXAMINER.COM, Nov. 4, 2011, http://www.examiner.com/anonymous-in-national/November-5-anonymous-celebrates- guy-fawkes-day
50. See Edecio Martinez, Girl Throws Puppies in River in Video, 4chan Users on the Hunt, CBS NEWS (Aug. 31, 2010, 10:50 AM), http://www.cbsnews.com/8301- 504083-162-20015154-504083.html.
51. Adrian Chen, Anonymous Leaks Personal Details of Cop Who Pepper-Sprayed Wall Street Protesters, GAWKER (Sept. 26, 2011, 2:07 PM), http://gawker.com/ 5843908/anonymous-leaks-personal-details-of-cop-who-pepper+sprayed-wall-street- protesters.
52. Xeni Jardin, The Pepper-Spraying Cop Gets Photoshop Justice, THE GUARDIAN, Nov. 23, 2011, http://www.guardian.co.uk/commentisfree/2011/nov/23/ pepper-spraying-cop-photoshop-justice.
53. Casually Pepper Spray Everything Cop, REDDIT, http://www.reddit.com/r/ AdviceAnimals/comments/mkja8/casually-pepper-spray-everything-cop/ (last visited Mar. 3, 2012).
54. See Emma Barnett, Facebook's Mark Zuckerberg Says Privacy Is No Longer a 'Social Norm,' TELEGRAPH (LONDON), (Jan. 11, 2010), http://www.telegraph.co.uk/ technology/facebook/6966628/Facebooks-Mark-Zuckerberg-says-privacy-is-no-longer- a-social-norm.html.
55. See, e.g., Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 HARV. L. REV. 193 (1890).
56. Josh Blackman, Omniveillance, Google, Privacy in Public, and the Right to Your Digital Identity: A Tort for Recording and Disseminating an Individual's Image over the Internet, 49 SANTA CLARA L. REV. 313, 314 (2009).
57. Neal Kumar Katyal, Criminal Law in Cyberspace, 149 U. PA. L. REV. 1003, 1034 (2001). (Pubitemid 33656787)
58. See Philip A. Wells, Shrinking the Internet, 5 N.Y.U. J. L. & LIBERTY 531, 534-37 (2010).
59. The relative newness of Facebook has prompted a number of theories regarding its influence on the development of social networking. Wells argues that Facebook actually represents the exact kind of innovation in cyber activity that will produce greater cyber norms. Because Facebook develops the miniature community through the facilitation of social networking and centers on the idea that a person's online identity mirrors his realspace identity, a social code is established. See id. at 572-74. Zuckerberg would likely counter that online communities are the exact kind of innovation that will destroy privacy needs, but a different concept of privacy may emerge, which is not as foreign to a traditional notion of privacy as Zuckerberg would think. In fact, to this end, movement is underway to curb the aforementioned problem of anonymous commenters by requiring that a comment be tied to a Facebook account. See MG Siegler, Facebook Has Been Refining Their Troll-Slaying Comment System for Months; Finally Ready to Roll?, TECHCRUNCH (Jan. 31, 2011), http://techcrunch.com/2011/ 01/31/facebook-comments-2/.
60. For an analogy, see Lior Jacob Strahilevitz, A Social Networks Theory of Privacy, 72 U. CHI. L. REV. 919 (2005) (arguing that individual expectations of privacy are shaped by the "network" in which one communicates information, regardless of the size of that network). If a person has many Facebook friends but restricts access to a certain subset of "friends," he has manifested an expectation in information released to those friends remaining private (Facebook's contracts with outside corporate parties notwithstanding). Under this theory, privacy can adapt to the Internet.
61. A recent example, though not in the law-enforcement context, would be the publication of former Department of Agriculture official Shirley Sherrod's videotaped remarks. The footage depicted her as making racist remarks but was presented entirely out of its nonracist context. For further details, see Sheryl Gay Stolberg, Shaila Dewan & Brian Stelter, With Apology, Fired Official Is Offered a New Job, N.Y. TIMES, July 21, 2010, at A15.
62. See Saturday Night Live: "I Didn't Ask for This," supra note 150.