Boston admits it: Cell phone photography is not a crime

When Massachusetts charged Simon Glik with using a cell phone to film an arrest, prosecutors probably didn't realize they'd set a key First Amendment precedent -- and cost taxpayers $170,000.

Declan McCullagh Former Senior Writer
Declan McCullagh is the chief political correspondent for CNET. You can e-mail him or follow him on Twitter as declanm. Declan previously was a reporter for Time and the Washington bureau chief for Wired and wrote the Taking Liberties section and Other People's Money column for CBS News' Web site.
Declan McCullagh
4 min read

The City of Boston tacitly acknowledged today that arresting a man for recording a police officer in public may not exactly have been the wisest -- or most constitutional -- choice.

That acknowledgement comes in the form of a $170,000 payment to Simon Glik, a Boston attorney who was prosecuted under criminal wiretap laws for using his cell phone to record police arresting someone on the Boston Common. They prosecuted the wrong fellow: Glik himself specializes in criminal defense.

Simon Glik, a Boston-area criminal defense attorney who was vindicated today after being illegally prosecuted for recording cops during an arrest
Simon Glik, a Boston-area criminal defense attorney who was vindicated today after being illegally prosecuted for recording cops during an arrest Simon Glik

A spokeswoman for the Boston Police Department told CNET this afternoon that the city has taken steps to ensure arrests-for-recording don't happen again. That includes "conducting training sessions for all department officers regarding the state wiretap statute," including updating the curriculum at the police academy, and publishing multiple training bulletins for officers, Elaine Driscoll said.

Even though Boston has learned an expensive lesson in constitutional law, other police departments have not: As cameras have become embedded in more consumer electronic devices, more Americans are finding themselves in legal jeopardy for digital snapshotting that's likely protected by the First Amendment. Embedded eyeglasses cams like the ones from ZionEyez (available for pre-order for $200) promise to accelerate developments.

The list of camera-shy police departments is a lengthy one. Seattle police arrested a man who photographed an arrest. So did Minnesota police. And Miami police. And Baltimore police. And Richmond police. And Rochester police. And so on.

In January, the National Press Photographers Association labeled the prosecutions an "ongoing assault on the right to photograph [and] record in public." This trend, accelerated by citizen-videography related to the Occupy protests, is one reason the United States dropped so precipitously, from 20th place to 47th, in the most recent rankings of media freedom compiled by the Reporters Without Borders advocacy group. It's even led to a blog titled Photography is Not a Crime, written by Carlos Miller, who can claim to have been arrested three times for photographing cops.

From law enforcement's perspective, the technological advance that gave rise to low-cost video recording and even lower-cost Internet distribution can cause some problems. It can prompt retaliation against officers. It can reveal the identities of undercover cops or confidential informants.

But cameras can also highlight police wrongdoing -- as the death of Oscar Grant and the beating of Rodney King demonstrated -- and provide a useful check on law enforcement's version of events. More to the point, "wiretap" laws weren't intended to apply to public confrontations, and if they did, they would likely run afoul of the First Amendment's right to freedom of speech.

"Updates in technology frequently present new circumstances for officers," says Driscoll, the Boston police spokeswoman. "We strive to keep our officers informed and updated to assist them in addressing new issues."

Adding extra impetus to Boston's training regimen was a ruling last August in the Glik case from the U.S. Court of Appeals for the First Circuit. Glik filed suit after being charged with violation of Massachusetts' wiretap statute, disturbing the peace, and aiding in the escape of a prisoner (the original fellow being arrested by police, who did not actually escape).

Glik said he made the recording because he believed excessive force had been used during the arrest. Eventually, prosecutors dismissed the charge of aiding in the escape. Only after the case went to court did they abandon the other charges; Glik responded filed a civil rights lawsuit alleging, among other things, First Amendment violations.

The First Circuit sided with Glik, saying that "numerous circuit and district courts" have reached similar conclusions and that the First Amendment's newsgathering protections apply beyond traditional media organizations:

The filming of government officials engaged in their duties in a public place, including police officers performing their responsibilities, fits comfortably within these (First Amendment) principles... This is particularly true of law enforcement officials, who are granted substantial discretion that may be misused to deprive individuals of their liberties... Such peaceful recording of an arrest in a public space that does not interfere with the police officers' performance of their duties is not reasonably subject to limitation.

If the judges had ended there, that would have been a sweeping win for Glik and his attorneys, including the American Civil Liberties Union of Massachusetts, which helped him file the civil rights lawsuit. But the First Circuit went further, saying the police should have known Glik's arrest was illegal -- and therefore the cops could be held liable for damages.

"The law had been clear for years that openly recording a video is not a crime," Glik said. "It's sad that it takes so much for police to learn the laws they were supposed to know in the first place. I hope Boston police officers will never again arrest someone for openly recording their public actions."

Boston probably won't. But the First Circuit's ruling has the force of law only in Massachusetts, New Hampshire, Maine, Rhode Island, and Puerto Rico.

Which means the legal skirmishing is likely to continue. A likely future point of contention: whether recording police in a public park like the Boston Common is the same as recording them during traffic stops.

That's led to arrests including that of Anthony Graber, a staff sergeant in the Maryland Air National Guard who was pulled over on his motorcycle by a gun-waving fellow lacking a uniform who did not immediately identify himself as police. (The case was thrown out, according to a report by the Baltimore Sun.) Earlier this month, a Temple University photojournalism student was arrested and charged with a felony for taking photos of a routine traffic stop.

The Third Circuit, which includes Pennsylvania, New Jersey, and Delaware, has said a traffic stop is an "inherently dangerous situation" and the right to film it is not clearly established. Even the First Circuit hinted that that they may view it differently: "A traffic stop is worlds apart from an arrest on the Boston Common."