RECORDING OFFICIALS

Issue

According to Pew Research, over half of all adults who are living in US now have their own smartphones.

Most of us depend on our smartphones for online access, and never has it been this fast and easy to take a photo or video and share it online for everyone to see.

This brings up a few questions. Can law enforcement simply take our phones from us? What are citizens' rights when it comes to filming in public?

Answer: As long as you're in public and you're not harassing anyone, you're able to film what is going on around you. If you see police brutality or an individual committing a crime, you should be able to film that. It's very important that when people are recording the police, they not interfere with officers' duties. Keep distance and don't interfere with what's going on.

Taking photographs and videos of things that are visible from public spaces is our constitutional right. That includes federal buildings, transportation facilities, police and other government spots. Unfortunately, law enforcement officers often order people to stop taking photographs, or video in public places, and sometimes harass, detain or even arrest people who use their cameras or cell phone recording devices in public.

When in outdoor public spaces where you are legally present, you have the right to capture any image that is in plain view (see note below about sound recording). That includes pictures and videos of federal buildings, transportation facilities (including airports), and police officers.

When you are on private property, the property owner sets the rules about the taking of photographs or videos. If you disobey property owners' rules, they can order you off their property (and have you arrested for trespassing if you do not comply).

Police should not order you to stop taking pictures or video. Under no circumstances should they demand that you delete your photographs or video.

Police officers may order citizens to cease activities that are truly interfering with legitimate law enforcement operations. In general, a court will trust an officer's judgment about what is "interfering" more than yours. So if an officer orders you to stand back, do so.

If the officer says he/she will arrest you if you continue to use your camera, in most circumstances it is better to put the camera away and call the ACLU for help, rather than risking arrest.

Police officers may not generally confiscate or demand to view your photographs or video or search the contents your cell phone without a warrant. In addition, it is possible that courts may approve the seizure of a camera in some circumstances if police have a reasonable, good-faith belief that it contains evidence of a crime by someone other than the police themselves (it is unsettled whether they still need a warrant to view them). (Note: This section has been updated to reflect the June 2014 US Supreme Court decision in Riley v. California, in which the court held that police need a warrant to search a cellphone.)

www.aclu.org