Law enforcement has historically clashed with journalists who are recording live events. Sometimes reporters had their cameras taken away or their film destroyed.

In the smartphone era, regular citizens find themselves in confrontations with police over videos. What are your rights regarding filming the police? Can you secretly record law enforcement? Can they confiscate your phone?

 

Know your rights when recording police

It is not illegal to record police in a public place or to record your own encounter such as a traffic stop. You do not need the consent of police.

But some officers have different ideas. They may tell you to stop recording. They may demand you erase the photos or video. In the most extreme cases, they might confiscate your phone, delete images or arrest you.

U.S. courts have consistently upheld the rights of citizens to record police, as a First Amendment right and as a necessary check against abuse of power. There may be immediate consequences – such as being handcuffed or having your phone taken — but ultimately the law is on your side.

There are some limitations and consequences

In general, citizens may not interfere with police in the performance of their duties. Getting too close with a camera or shouting in an officer’s face may cross the line. If filming the action puts you in harm’s way or endangers the officer’s safety, you may lose your legal protection or officers may lose their patience. Live streaming events – such as a police raid – could compromise law enforcement by tipping off the suspects.

Conceivably, you could face criminal charges of disorderly conduct, assault on a police officer, or obstruction of justice. In the eyes of the court, police may also be justified in these situations in using physical force to disrupt a recording or to remove the person.

There is also some question as to whether you can secretly record police. If you are filming an altercation or police misconduct, there are reasons to do it discreetly — namely to avoid having your video confiscated or destroyed by an angry cop. South Carolina is a one-party consent state for recording conversations. This means you can secretly record a phone call if you are one of the parties in the conversation, but you could not secretly record someone else’s conversation.

So what about secretly filming police in action? A federal judge in Massachusetts recently sided with citizens in this situation, saying that the state’s wiretap law did not apply. It’s a gray area of the law that has not yet filtered its way to the higher courts. Citizens could be detained or land in legal jeopardy by taping police without their knowledge. But some people feel that keeping the police accountable is worth the price.