Ten Rules for Recording Cops and other Authority Figures (Citizen Journalism 101)

OFF THE WIRE
By Carlos Miller

This is the first draft of the cover of my upcoming book, which is scheduled to be published next summer.

For the first time in history, we, the people, have true freedom of the press where it is no longer restricted to those who own the press.
And that�s not a bad thing considering the majority of news companies in this country are owned by a handful of corporations that have been consistently downsizing newsrooms, if not entirely slashing news departments as was the case with the Chicago Sun-Times last month when it fired its entire photography department, leaving the nation�s ninth largest newspaper dependent on reporters with iPhones to fill the void.
Thankfully, the First Amendment guarantees us all Freedom of the Press, meaning we have as much as right to to report on and disseminate the news as professional journalists, even if we�ve never set foot in a newsroom. In fact, it�s absolutely crucial that we step up to fill the void left by the mainstream media.
And we can begin doing that by recording police when they interact with the public,  including our very own interactions such as traffic stops. The goal is to not just record possible instances of police abuse, but to remind these officers that we are well aware of our rights to record them in public where they have no expectation of privacy (as they do to us).
After all, it is very clear that many of them don�t know we have that right or most likely would like to convince us we don�t have that right, even though numerous court decisions state otherwise, including the landmark Glik vs Boston decision that specifically stated that Freedom of the Press was guaranteed to all citizens.

The First Amendment right to gather news is, as the Court has often noted, not one that inures solely to the benefit of the news media; rather, the public�s right of access to information is coextensive with that of the press. Houchins, 438 U.S. at 16 (Stewart, J., concurring) (noting that the Constitution �assure[s] the public and the press equal access once government has opened its doors�); Branzburg, 408 U.S. at 684 (�[T]he First Amendment does not guarantee the press a constitutional right of special access to information not available to the public generally.�).
The proliferation of electronic devices with video-recording capability means that many of our images of current events come from bystanders with a ready cell phone or digital camera rather than a traditional film crew, and news stories are now just as likely to be broken by a blogger at her computer as a reporter at a major newspaper. Such developments make clear why the news-gathering protections of the First Amendment cannot turn on professional credentials or status.

Beau McCarthy of Cop Block exercising his First Amendment right to record police (Photo by Ademo Freeman).

The following are ten basic rules I�ve compiled to help citizens better understand their rights and to become better citizen journalists. These are just general guidelines and should not be considered legal advice as I am not a lawyer.
I am, however, a veteran journalist who spent almost ten years covering the cop beat for newspapers before launching this blog six years ago. And I have been arrested three times for photographing cops on a multitude of charges without a single conviction, except for one I had reversed on appeal where I represented myself.
I also have a book coming out next year on citizen journalism as you can see in the image above, which I will be writing over the summer.
So this is a topic I hope to frequent more often on my blog in the hopes of educating, encouraging and inspiring citizens to become part of the Fifth Estate, which is journalism of the people, by the people and for the people.

1. Learn to hold the camera: If you�re serious about citizen journalism, I recommend investing in a camera other than what you have on your Smartphone. You want something that produces high-quality video and records clear audio but that is small enough to carry with you wherever you go. Something that not only is able to record in low-light but also able to zoom in when cops force you to back up. A camera that records quality video as well as quality audio. Probably something with an external microphone jack even if you don�t believe you�ll ever use it.
Technology is advancing so fast that it would be pointless to make any recommendations, but it�s easy to conduct research on the internet to find a camera within your budget.

There is a right way and a wrong way to record on your smartphone and both ways are demonstrated here as citizens in Boulder, Colorado attempt to record President Barack Obama (Photo by Chris Carruth)

If you absolutely must shoot video with your smartphone, then please, for the love of God, hold the phone horizontally so your videos come out horizontally. While it may be easier to hold the camera in the vertical position, you end up with a video that uses only a third of the available screen sandwiched by two black lines.
Holding the phone horizontally usually requires the use of two hands, which usually guarantees a more stable video. Even if you�re not using a smartphone, it is recommended to hold the camera with both hands to prevent camera shake as much as possible.
The best thing to do is practice shooting video whenever you can, including of your friends, families and pets, even if you just end up deleting the video, because you want to be prepared when it is absolutely necessary to record.
You don�t want to mistakenly have your fingers over the microphone or think you�re recording when you�ve actually stopped recording.
The one advantage smartphones have over other cameras is that you can use livestreaming apps like Bambuser, Qik and Ustream to protect your footage in case your camera gets confiscated.
The disadvantages is that if police do confiscate your phone, then you�re not only out of a camera but a phone, which in many cases, is our lifeline to the world.
Legally, police can only confiscate your camera under exigent circumstances, which I will explain further down.
2. Keep your mouth shut
We�ve all seen the videos of cops violently arresting somebody, only for the person holding the camera to be shrieking hysterically that they�re pigs or that they�re going to end up on Youtube or that the person they�re arresting didn�t do anything illegal.
Keep in mind that your mouth is closer to the microphone than anybody else�s mouth, so your voice is going to be magnified as it drowns out the relevant audio that needs to be captured.
However, don�t be afraid to inform viewers of what exactly is taking place on camera. Speak clearly and stick to the facts because you want the viewer to form their own opinion of what is taking place. But it�s more important to capture what is taking place so make that your priority.
3. Don�t be afraid to ask questions
Many cop watching activists will tell you not to talk to police when they confront you but if you want to be a journalist, you�re going to have to learn to ask the right questions. But do so after they make their arrest so they won�t accuse you of interfering. And be professional about it. If they decide to be unprofessional, just keep the camera turned on them to expose them.
You�ll want to stick to the Five W�s, the who, what, when, where and why, which are the basic elements of journalism interviewing. This also helps in you controlling the dialogue rather than the cop controlling the dialogue. Don�t let the badge intimidate you.
Most of the time, they will refer you to a public information officer who may or may not show up on the scene, so ask for that officer�s name and phone number, even if you don�t plan to call it because it�s good to get into the habit of talking professionally with cops.
Although you are not required to hand over your identification if asked, unless you are suspected of committing a crime (more on this later), it doesn�t hurt to tell them your name and where you plan to post the video.
Remember, you need to think of yourself as a journalist, not an activist. Journalists should have no problem identifying themselves.
4. Learn the laws about public property
Nobody has an expectation of privacy in public, which is why you�re allowed to record cops, paramedics, suspects and victims as long as they are in full view of the public. If you can see them, you can record them.
But you don�t want to end up arrested for some unrelated matter just because the cop is looking for an excuse to keep you from recording. This can easily happen if you are standing on the street as opposed to the sidewalk or getting too close to police where you end up physically interfering with their investigation.
Sometimes police will threaten to arrest you for blocking pedestrian traffic if you are standing on the sidewalk, but I have yet to read an actual statute that describes this offense. Not saying it doesn�t exist but I didn�t see it in the Florida and New York statutes.
Or sometimes they will threaten to arrest you for loitering, which is also reaching because these laws usually pertain to private property or when a person is idling about on public property for an apparent reason except no good such as in areas with heavy prostitution or drug use.
But if you are recording police, then you have a very justifiable reason to stand on the sidewalk. So justifiable that it is protected by the First Amendment.
Sometimes, the best way to handle these cops is to ask them where exactly would they like you to stand to gauge just how reasonable a cop you are dealing with.
There is never a guarantee that you won�t be arrested, but you can minimize those chances by informing the officer you know your rights while continuing to record.
5. Learn the laws about private property
Nobody has an expectation of privacy when they are on private property that is open to the general public like a shopping mall, office building, local bar or a storefront parking lot.
People generally have an expectation of privacy when they are inside their homes, unless they happen to be standing by an open door or clear window where anybody walking by can see them.
For journalistic purposes, we will stick to the former in this section because it�s probably not the wisest decision to begin recording cops through their windows while they are home and off-duty (unless you have a very good reason to do so).
Business owners or private security guards have every right to forbid you from recording on their premises, even if they are recording you with security cameras as is usually the case.
But they have no right to force you to delete your footage or confiscate your camera. The worst they can do is order you to leave the premises. And if you refuse, they can have you arrested for trespassing.
6. Learn the laws about government-operated facilities
Generally speaking, this is considered the same as public property because these are tax-funded facilities, but many of these facilities can have their own policies that you need to research beforehand just to be sure.
One of the biggest problems has been government-owned train stations where police are under the impression that they are protecting the country from terrorism by forbidding citizens from recording, but most of these train stations allow photography as long as you are not shooting for commercial purposes, which generally means advertising. Journalism is considered editorial photography and protected under the First Amendment.
The New York subway system allows photography but forbids the use of light, tripods and reflectors because it could impede foot traffic and I imagine other train stations have similar policies, but do your own research just to be sure.
Photography is also allowed on public universities, Transportation Security Administration checkpoints and inside municipal buildings if you are recording your personal business.
And yes, even in the lobbies of police departments, but you need to thread carefully here because they may arrest you nonetheless or they may have their own policies in place that are not part of the state law.
The best way to avoid getting arrested is to remain professional and to state an actual purpose to record inside a police department other than just doing because you can, such as making public records requests or filing a complaint against an officer. Just tell them you are conducting official business with a government agency and you insist on getting it on the record.
However, rules and laws vary inside courthouses with federal courthouses not allowing you to even walk inside with a camera, let alone use one inside, and state and local courts having rules that apply mainly to actual courtrooms, not necessarily the corridors or offices inside the courthouse.
Again, this is something you would have to research depending on what state or county you live in, but it�s something that can usually be done with a few key strokes on Google.
The truth is, the laws haven�t caught up with technology yet so it�s up to us to set the standard before they start trying to set the standard, so we can ensure the government remains as transparent as possible.
7. Learn your state�s wiretapping laws 
It wasn�t too long ago that police throughout the United States were routinely using state wiretapping laws to arrest people for recording them in public, which is not what those laws were intended for when they were created.
The cops had realized that citizens were catching on to the fact that photography is not a crime, so they started arresting people based on the audio recordings the citizens captured. The issue came to a boiling point in Illinois that had a Draconian eavesdropping law in the books that had several citizens facing lengthly prison sentences because they had recorded cops in public who were on duty. The Illinois law has been ruled unconstitutional, so police are not allowed to arrest anybody for it.
So right now, it is legal to audio record cops in public in all 50 states because they do not have an expectation of privacy.
Massachusetts has a slight exception where citizens are not allowed to secretly record cops in public, but even that law has been questioned by a prosecutor in that state and it is probably ripe for a challenge (just in case you�re up for it).
As a citizen journalist, you should always strive to make it obvious you are recording anyway because  the point is to send a message to cops you know your right.
However, if you find yourself becoming the victim of police abuse and know that it would probably be dangerous to pull out your camera and start record, don�t hesitate to start secretly recording, even if you live in Massachusetts.
Click on this link to read up on your state�s wiretapping or eavesdropping laws.
8. Learn how to handle police intimidation
No matter how much you think you have prepared yourself, it can get downright nerve-racking when a hulking cop stands over you with a badge, gun, handcuffs, taser gun and pepper spray, ordering you to hand over your identification and/or your camera.
But you need to think of yourself as a journalist not an activist. You are there to do a job, even if you are not getting paid for it. And once you build a Youtube following, you could easily start collecting regular checks from Google Adsense, so it�s important to think of yourself as a professional.
They will usually demand your identification, but federal case law states that they must have reasonable suspicion that you have committed a crime (or are about to) in order to require you to hand over your identification.
However, different states have varying �stop-and-identify� laws that make it a crime to not identify yourself if you are being detained for some perceived crime. Usually, it is permissible to verbally identify yourself instead of pulling out your identification, so I recommend just stating your name and handing them your business card if you have one, just out of professional courtesy, not because you are required by law.
If they insist on seeing your identification, ask them what crime do they suspect you of committing. Recording police is not a crime, so they need to be more specific about an actual being broken.
Sometimes cops will order you to delete your footage because they believe you have violated their privacy or the privacy of a suspect or a victim, but you are under no legal obligation to delete your footage. As stated before, nobody has an expectation of privacy in public. Not even the president.
Sometimes they try to confiscate your camera as �evidence� of a crime, but in most circumstances, the camera would had to have been used in the commission of a crime such as child pornography or upskirting.
If the camera was not used in the commission of a crime but they believe it contains evidence to a crime, then police would need to obtain a subpoena or warrant in order to obtain it. The only exception would be what the law refers to as �exigent circumstances,� which would be if they have a strong suspicion that you are going to delete the footage or disappear to the point where they won�t be able to deliver you a subpoena.
If you have recorded footage that you believe will help police solve the camera, perhaps you might not have a problem sharing your footage, but please do not give up the original footage. And post online anything you have shared with them in order to remain transparent.
Even the mainstream media will not share their footage without first going through their lawyers and even then, they would probably air it before giving police the same footage they have already shared with their viewers.
So I would recommend doing the same, but only if you feel inclined to because you are under no obligation to assist them with their investigation.

New York City police clash with photographers during a protest (Photo by Paul Weiskel)

If you are jailed, you must remain calm. Do not get into arguments with the cops because at that point, you�re already lost the battle, so you need to be thinking ahead at how you�re going to win the war.
Pay attention to all the cops dealing with your arrest, handling your camera. Read their name tags and memorize their names, faces and ranks. Figure out who is the commanding officer. Listen to their conversation, read their body language, pick up on cues that they are trying to figure out what to charge you with because there is no law in the books that forbids you from recording in public.
You might want to remind them that deleting footage is a crime, spoliation of evidence, if you want to be legal about it. Destruction of evidence if you want to keep it in layman�s terms. Or you just may want to remain quiet.
If they delete your footage, keep in mind that you can eventually recover it as long as you don�t override the deleted footage by recording over it.The program I recommend is Photo Rec, which is free, but a little complex. There are other programs out there as well that are more simple to use but do not do such a great job in recovering entire video clips.
9. Remain ethical and transparent 
Our mission is to hold police accountable, so we must hold ourselves accountable to the fundamental ethics of journalism. It doesn�t mean we have to be like the mainstream media and remain blindly �objective� to the point where we can�t just come out and say the cops were being abusive.
We are allowed to give our opinion. In fact, we are encouraged to give our opinion but we must not let this get in the way of presenting the facts and allowing our followers to form their own opinions.
And we should allow these followers to state their opinions through comments without blocking, banning or deleting their comments as long as they keep their comments civil. It�s up to you to set the standards on your own blog or Youtube account, but it�s not journalism if you insist on preaching to the choir.
10. Learn to edit video 
If you want your video to go viral, you need to keep it short and concise.
People on the internet don�t have time to sit through a ten minute video. In fact, most people will probably not make it this far down in this article, so imagine them trying to sit through a video where nothing is happening waiting for something exciting to happen.
Writers use the phrase, �kill your babies,� when they edit their stories, which means to delete the portions that they find interesting but in reality, do nothing to move the story forward. Apply the same logic to video editing.
A general rule would be to keep it under three minutes. If you have an exceptionally interesting video, then extend it to five minutes.
If you absolutely are compelled to make the video longer because you believe it is necessary to tell the entire story, then try to produce a shorter version but don�t be surprised if the shorter version ends up with more views.
Also, try to include the basic information in the headline and description of the video. The five W�s as described above. Or at least a link to an article that provides more background.
It also helps if you include captions during certain scenes to provide more information, but try to keep them at the bottom of the screen and keep them up long enough so viewers can read them.
And please, no matter how cool you think it may sound, do not add music to the video.
Just because you are a huge heavy metal or hip hop fan doesn�t mean the people viewing the video will be. External music can be very distracting. Especially when it�s something people are not familiar with.
Remember, you are producing journalism, not music videos.

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Here are some links that can further help you understand your rights as a citizen journalist.

• The U.S. Department of Justice last year drafted a set of guidelines that police departments are expected to abide by when dealing with citizens who record them in public. It would be worth printing out and carrying in your camera bag in case you come across police officers who are unaware of the law.
• The National Press Photographers Association regularly comes to the defense of citizens arrested for recording in public, even if they are not members. At $110 a year for membership ($65 for students), they have a lot to offer.
• The Digital Media Law Project, founded by Harvard University, also provides legal guidance and education to citizen journalists.
• The Photographer�s Right is a set of legal guidelines compiled by Oregon attorney Bert Krages, who also wrote a book called the Legal Handbook for Photographers.
• The ACLU published Know Your Rights: Photographers, which is also a good guide.

�Freedom of the press is guaranteed only to those who own one.� A.J. Liebling

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I would add only one item. Federal law (43 USC 2000aa) protects your work product from seizure either on the scene or by warrant if you intend to distribute it to the public. They can only obtain it with a subpoena, which means in those cases it makes sense to provide them with identifying information.

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