TALLAHASSEE — A new Florida law now shields the footage taken by police body cameras from public view, but legal experts say that doesn’t affect the rights of citizens who want to record their own video.
Unless, that is, the video has sound — and usually they do.
Among new measures that took effect Wednesday was a public records exemption covering body-camera video.
A privacy exception now prevents disclosure of such video, including footage taken inside a home, at a hospital or at the scene of a “medical emergency.”
Moreover, a catch-all provision exempts body-camera video where an individual recorded had a “reasonable expectation of privacy,” though it does allow the subject of any footage to authorize its release.
But media-law and civil-liberties groups say the law is well settled when citizens take a camera into their own hands.
And they do so more often, especially with the rise of smartphones with video cameras and the ability to post such videos instantly to social media and elsewhere on the Web.
The law isn’t settled, however, when it comes to the soundtracks.
In other words, Floridians generally can record police activity but that may depend on what is meant by “record.”
In 2013, the U.S. Department of Justice said there’s a constitutional right for the press and anyone else to photograph police in public places.
News photographers in particular have been carrying the fight for decades, quarreling with officers who say they get in the way of policing.
The Justice Department filed a “statement of interest” in a case involving a news photographer who said he was wrongly arrested for recording Maryland police during an arrest.
The photographer, Mannie Garcia, also took the photograph of Barack Obama later used by graphic artist Shepard Fairey for his iconic “HOPE” poster.
“It is now settled law that the First Amendment protects individuals who photograph or otherwise record officers engaging in police activity in a public place,” the department’s statement said.
The National Press Photographers Association also tells members “government officials and law enforcement agencies … have erroneously relied upon the Patriot Act and post-9/11 anti-terrorism efforts in a push to limit photography in public places,” according to its website.
But the clarity of one’s rights gets blurred moving from pictures to sound.
Some police departments have argued that the audio portion of video recordings violates state wiretapping laws, according to the American Civil Liberties Union.
It comes down to whether police officers can reasonably claim they had some right to privacy in a given situation, said Shalini Goel Agarwal, ACLU of Florida staff attorney.
“It’s context specific,” she said. “The more public an event is, the more people around, the less likely police can claim protection under a wiretap law.”
The ambiguity over audio has been vexing in other cases not related to police.
Florida law forbids recording someone without consent, but it’s not clear whether that includes recordings made in “public buildings,” for example.
Carletha Cole, an aide to then-Lt. Gov. Jennifer Carroll, was charged in 2011 with illegally releasing taped conversations from the lieutenant governor’s office.
The tapes, mostly embarrassing political gossip, wound up on a newspaper’s website.
Cole later worked out a plea agreement that meant the legal question underpinning her case remained unresolved.
Though the ACLU of Florida believes the right to record police activity includes a right to capture sounds, its website also says, “if you are told by a police office to not record audio, you should comply.”
Otherwise, the group says, “when in public spaces where you are lawfully present, you have the right to photograph anything that is in plain view.”
On private property, “the property owner may set rules about the taking of photographs … and (can) have you arrested for trespassing if you do not comply,” the ACLU says.
One thing is clear: “Police officers may not generally demand to view your photographs or video without a warrant” and they can’t “delete your photographs or video under any circumstances.”
Finally, the organization advises that police may order someone to stop recording if that person is “truly interfering with legitimate law enforcement operations,” adding that “the right to photograph does not give you a right to break any other laws.”
“For example, if you are trespassing to take photographs, you may still be charged with trespassing,” the ACLU website says.