Do citizens have a ‘right to record’ in the digital age?

When Representative Darrell Issa (R-CA) and I talked this summer about his proposal for a digital Bill of Rights, I followed up by asking him about whether it might be more productive to focus on the rights that we already have in the digital context.

That conversation naturally led to a question about freedom of assembly and freedom of the press, both of which came under some pressure in the United States during the Occupy protests of the past year. Our interview follows.

How can we make sure that the ‘inalienable rights’ that we are endowed with already are receiving oversight and enforcement from our representatives?

Rep Issa: I think that when we’re aghast at what China’s doing to Google, it helps us say we’re so upset about that. I think we need to take examples, we need to see what we don’t like and what the American people want us to protect. Sometimes you look abroad for really bad behavior and then you look internally to find similar behavior, maybe a quantum leap lower, but it’s still there.

You mentioned Washington D.C. and Occupy. I think that’s a classic example where free speech was turned into free camping. The rights of the public broadly to enjoy an asset that was set aside for public use [were involved], where the Mayor — who doesn’t happen to be from my party or even my ideology — comes to us and says, “We’ve got rats, we’ve got crud. We’ve got all of these things that are spreading into the rest of the city. These people are not exercising their free rights for most of the day, what they’re doing is camping on grounds that were not designed or built or prepared for that.”

As it went on week after week after week, it wasn’t camping overnight, between the day you arrive and the protest the next day: it was effectively ‘living in.’ That’s a good example where the rules are pretty well understood, the history is pretty understood, and the enforcement at the end was pretty consistent with what it’s been over the years. Your presence can be a protest, but, at some point, your presence becomes simply an impediment to other people’s rights.

Are you concerned that there have been dozens of journalists arrested at Occupy protests? And I don’t mean just citizens livestreaming what’s happening, although one could make a case that they’re committing ‘acts of journalism.’ I’m referring to credentialed journalists arrested while they’re actively chronicling what law enforcement is doing to their fellow citizens.

Rep Issa: There’s a separate question, which is whether law enforcement is entitled to the cloak of secrecy as they pull you over for a DWI and their camera isn’t on when they rough you up but is on when you resist arrest. Those are areas of personal liberty.

We’re not dealing ‘digitally,’ but we are dealing with an era in which a policeman or other individuals demand the rights to video you involuntarily, when it suits them, and then object if you want to video their doing the same event but from an independent perspective.

Do I think the court has to rule on that? Absolutely. Do I think you have to find the anecdotal examples of most egregious behavior in order to prove the point? Probably. But I think there have been a number of them.

When they talk about arresting journalists, whether credentialed or not, the court has to weigh in and say the police should not be afraid of a camera. If they’re afraid of a camera, they might be afraid of a witness. And if they’re afraid of you and I watching for some valid reason, great. But if you and I watching and the equivalent, digitally capturing it, then they’ve crossed a line.

I want to be careful. Some of the arrests of journalists, some of those arrest examples include, basically, misbehavior of journalists getting in the face of people, shoving cameras at them and asking questions designed to be less than what you would call passive. Those are not necessarily the best example. It’s sort of like you look at the paparazzi and Princess Di dying: it wasn’t the finest day to claim that paparazzi had rights.

On the other hand, if it’s somebody who from a distance who is observing and video recording an actual arrest of or holding of some individual who is simply walking down the street and says, “Hey, don’t stop me, you haven’t got a right” — the two are very different. And passive observation by the press is a better one to take to the court because it’s a slam dunk First Amendment [case].

Aggressive behavior by press who get in the face and blocks somebody trying to move is always a little bit more of a call where you and I could probably find a point in which we would say that the First Amendment line has been crossed in that somebody else’s rights have been infringed.

This is important, because this is where the left and the right should come to a common ground. Strict adherence to rights, even when it’s inconvenient, is part of what makes America a better country.


This week, the Chief of the Metropolitan Police in the District of Columbia issued an order [PDF] affirming the public’s right to photograph and film police officers who are performing official business. The MPD’s action came as part of a court-mandated settlement of a lawsuit brought by Jerome Vorus, who claimed he was wrongly detained by the police department after photographing police activity.

The order “recognizes that members of the general public have a First Amendment right to video record, photograph, and/or audio record MPD members while MPD members are conducting official business or while acting in an official capacity in any public space, unless such recordings interfere with police activity.”

Given instances of documented interference with credentialed media in the city of New York, such guidance might be useful in the five borough as well.

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