Due to growing technological advances and the ubiquity of mobile phones, it has become increasingly common for citizens to use these devices to photograph and record events. Though largely uncontroversial, when used to record public police activity, some citizens have been arrested and charged under state wiretapping r eavesdropping statutes. Over time, various circuit courts have held that this right to record public police actions is a protected activity. Most recently, however, the U.S. Court of Appeals for the Eighth Circuit affirmed a lower court decision, which held that this act of recording is unprotected, thereby exemplifying how circuit courts are split on the issue. Given the importance and timeliness of this issue, this Note agrees with the majority of circuit courts and argues that recording public police activity receives constitutional protection. Part I discusses the First and Fourth Amendment protections surrounding this right to record police activity, further supplemented by the common law right to acquire information. Part II reviews the current circuit split, providing a brief synopsis of the various cases dealing with this issue. Part III, siding with the majority of circuit courts, argues that the citizen right to record is entitled to constitutional protection and advocates for its legality as a matter of public policy.
Watching Big Brother: A Citizen’s Right to Record Police,
28 Fordham Intell. Prop. Media & Ent. L.J. 637
Available at: https://ir.lawnet.fordham.edu/iplj/vol28/iss3/4