Photographing Police: What Happens When the Police Think Your Phone Holds Evidence of a Crime?
The Washington, DC chief of police on Friday issued a new “General Order” to members of the police department on “Video Recording, Photographing, and Audio Recording of Metropolitan Police Department Members by the Public.” The order, which was part of the settlement of an ACLU lawsuit, includes some very interesting, groundbreaking provisions.
The order reminds police officers in Washington that:
• Still and video photography “of places, buildings, structures and events are common and lawful activities.”
• “A bystander has the right under the First Amendment to observe and record members [of the police force] in the public discharge of their duties.”
• “A bystander has the same right to take photographs or make records as a member of the media” as long as the bystander has a right to be where he or she is.
Of course, the order also makes clear that these protections only apply insofar as individuals are not impeding or interfering with the performance of police duties. The full text of the order is here—and for those interested in the right to record, worth a look.
One of the most interesting portions of the order has to do with those cases where police believe that a smartphone or other recording device may contain evidence of a crime. Generally police do not have the right to seize anyone’s camera or phone—though (as we explained in our Photographer’s “Know Your Rights” piece) the only exception might be when the police believe that a device contains evidence of a crime.
I spoke with my ACLU colleague Art Spitzer, who handled this case for the ACLU of the National Capital Area, and he told me how the case unfolded, and how that issue was addressed:
Our client is a young African-American guy named Jerome Vorus who is still a student but is also a budding photojournalist and has had a number of jobs at well-known media outlets around town—internships and summer jobs. And so he carries his video equipment with him everywhere he goes, and is especially interested in police and fire activity. He was walking in Georgetown one day in July 2010 when he saw some DC police officers conducting a traffic stop, and he stopped on the sidewalk and started taking still pictures. And when the police officers saw what he was doing, they came over and essentially told him he was not allowed to do that, and detained him for about half an hour on the scene. He very commendably stood up for his rights and told them that he had every right to do that. And eventually, they backed down, and gave him back his driver’s license which they had asked for, and let him go. And he actually did an audio recording of a lot of the transactions with the police, so we had a good record of what had happened.
We saw his blog about the incident and contacted him. We wrote to the police chief—a long letter describing what had happened and stating our view that what the officers had done was improper. We got no response to that. So eventually we filed a lawsuit, which got their attention. At that point, they asked us if we thought we could work out a settlement, and we said what Mr. Vorus really wants—he’d like some money for the fact that he was improperly detained—but mostly what he’s interested in and what we’re interested in is getting the police to understand how they should behave: when someone’s taking their picture, basically they should just smile.
It took us a long time, negotiating back and forth, and they agreed they would issue some guidance to the police department about this. It took a long time to come to agreement on the form, which is a General Order—the highest level of instruction in the police department. There are general orders on most basic subjects—how the police should do things, how they should conduct searches and seizures, how they should conduct investigations, what various parts of the law mean.
The part that actually took longest to negotiate was the question of what do you do if the police have reason to believe that someone’s camera has evidence that might be important, either in prosecuting a crime or in perhaps in showing police misconduct. We didn’t want the police to be just grabbing people’s cameras—which has certainly happened sometimes—and we also certainly didn’t want police to be browsing through people’s photographs and video to see what else might be there that’s really of no legitimate interest to the police.
And we eventually agreed. I think the most creative thing about this order—my idea was, why can’t the police department set up an email address so that someone can simply email the relevant photographs or video, so you’ll have it, but I get to keep my camera. So that’s been incorporated in the order.
There still may be some situations where the person refuses to do that, where the police believe they need the evidence. In that case they have to call a higher-ranking official to the scene, who would presumably first try to persuade the person to voluntarily hand over the photographs. But if the person won’t, then eventually that higher official can make a decision on whether it’s necessary to seize the camera.
If the camera is seized, the police are not allowed to look at what’s on it without going to a judge and getting a search warrant, which would give them permission only to look at the relevant photographs or video, and not to look at everything.
So we thought we protected that about as best we could, understanding that there surely may be some cases where the pictures are important evidence, and the government has a right to get that evidence.
As far as we know, this DC general order is the first time that anyone has tackled this issue, and it looks like Art and the DC police department reached a very good resolution of this issue, which sensibly preserves everyone’s interests. It also (in DC at least) helps further the long overdue and frustratingly intractable process of educating officers on the street about citizens’ right to record.
Jerome Vorus’s blog and photos from the incident are online, as is a Monday local television interview with him, and earlier local press coverage and a Reason TV interview.
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Press ReleaseDec 2024
Free Speech
National Security
ACLU and Partners Urge Supreme Court to Block TikTok BanACLU and Partners Urge Supreme Court to Block TikTok Ban
WASHINGTON — Today, the American Civil Liberties Union, the Electronic Frontier Foundation (EFF), and the Knight First Amendment Institute at Columbia University filed an amicus brief urging the Supreme Court to block the enforcement of a law that would effectively ban people in America from using TikTok as soon as January 19, 2025. Earlier this month, the U.S. Court of Appeals for the D.C. Circuit rejected TikTok’s challenge to the law. TikTok has asked the Supreme Court for a temporary injunction to prevent the app from being banned while the court considers whether to take the case, saying that unless the justices intervene, the law will “shutter one of America’s most popular speech platforms the day before a presidential inauguration.” “The Constitution imposes an extraordinarily high bar on this kind of mass censorship,”said Patrick Toomey, deputy director of ACLU’s National Security Project. “The Supreme Court should take up this important case and protect the rights of millions of Americans to freely express themselves and engage with others around the world.” The brief argues that the D.C. Circuit failed to fully address the law’s profound implications for the First Amendment rights of the 170 million Americans who use TikTok. While the lower court’s decision correctly recognized that the statute triggers First Amendment scrutiny, it barely addressed users’ First Amendment interests in speaking, sharing, and receiving information on the platform. The court also perplexingly attempted to cast the government’s ban on TikTok as a vindication of users’ First Amendment rights, which it is not. The rights groups also explain that the law was intended to suppress certain content and viewpoints that many legislators believe could be amplified on TikTok, including the risk of foreign “propaganda.” But under the First Amendment, the government must meet a very high bar to restrict speech based on concerns about its “motivating ideology” or “perspective,” and the government has not come close to meeting that bar here. “The government should not be able to restrict speech, especially to the extent here, based on guessing about the mere possibility of uncertain future harm,” said David Greene, civil liberties director at EFF. “The Supreme Court should put the TikTok ban on hold while it considers the DC Circuit’s erroneous ruling.” Finally, the brief underscores that the government can’t impose this type of sweeping ban unless it’s necessary to prevent extremely serious and imminent harm to national security. But the government has not provided evidence of impending harm, or evidence that banning TikTok is the only available way to address its concerns. As the brief explains, the D.C. Circuit improperly treated the government’s invocation of “national security” as a trump card and failed to hold the government to its burden. “Restricting citizens’ access to foreign media is a practice that has long been associated with repressive regimes, and we should be very wary of letting the practice take root here,” said Jameel Jaffer, executive director at the Knight First Amendment Institute at Columbia University. “It would do lasting damage to the First Amendment and our democracy if the Supreme Court let this ban go into effect even temporarily.” You can find the brief online here: https://www.supremecourt.gov/DocketPDF/24/24A587/335380/20241217144322392_24A587%20TikTok%20v%20Garland%20Amicus%20Brief%20pdfa.pdf -
Press ReleaseDec 2024
National Security
Religious Liberty
ACLU Statement on New White House Strategy to Counter IslamophobiaACLU Statement on New White House Strategy to Counter Islamophobia
WASHINGTON – The Biden administration today released the first-ever national strategy to counter Islamophobia and related forms of bias and discrimination, including hate against Arab, Sikh, and South Asian Americans. In advance of the strategy, American Civil Liberties Union and its partners had urged the administration to overhaul government programs that reflect anti-Muslim discrimination. In particular, we have called for urgent action to constrain governmental agencies from continuing to exercise their authorities and technology to wrongly surveil and investigate, watchlist, and question and detain Muslims at the border, as well as deny immigration benefits to people from Muslim-majority countries. While the White House raised expectations that many of these issues would be addressed, the final strategy ended up falling far short. The following is a statement from Hina Shamsi, director of the ACLU’s National Security Project: “While this strategy acknowledges discrimination and its harms, it does little to end them and is a squandered opportunity. For decades, American officials have invoked national security to pass laws and implement programs that disproportionately harm Muslims and people perceived to be Muslim. A serious anti-discrimination strategy would concretely address multiple bias-infused government practices that deny our communities equal participation in civic life and our democracy, like federal watchlisting, surveillance, and investigation. We’re profoundly frustrated that the administration didn’t take even the basic, overdue step of recognizing that anti-Muslim discrimination is uniquely normalized and embedded in government policies.” -
VirginiaDec 2024
National Security
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Our client, Nizar Trabelsi, is in the United States against his will. The federal government brought him here from Belgium more than a decade ago and charged him with terrorism-related crimes. At trial, the government’s case failed: a federal jury found Mr. Trabelsi not guilty. But instead of allowing Mr. Trabelsi to return to Belgium after his acquittal, the United States placed him in highly restrictive immigration detention and began an ongoing effort to force him to Tunisia, where he was born and where he will very likely be tortured. Mr. Trabelsi’s detention violates the Constitution, immigration law, and the extradition treaty between the United States and Belgium. Through this lawsuit, he seeks to return to Belgium, and he demands an immediate improvement of his detention conditions. -
Press ReleaseDec 2024
National Security
Immigrants' Rights
Federal Judge Rejects Acquitted Man’s Argument That His Immigration Detention Is UnlawfulFederal Judge Rejects Acquitted Man’s Argument That His Immigration Detention Is Unlawful
ALEXANDRIA, Va. — This week, the U.S. District Court for the Eastern District of Virginia ruled that the court does not have jurisdiction to decide whether the government can continue to detain Nizar Trabelsi, a Tunisian national who was brought to the United States against his will for prosecution and was cleared of all charges last year. The ruling means the United States will be able to continue to detain Mr. Trabelsi while it attempts to deport him to Tunisia, where he was born and where, as an immigration judge ruled earlier this year, he will likely face torture. The court also concluded that even if it did have jurisdiction over Mr. Trabelsi’s case, his claims challenging the government’s detention of him would fail. “Reviewing claims that the government is holding someone unlawfully is at the core of the judicial function, and we’re heartbroken for our client that the court got this so wrong,” said Brett Max Kaufman, senior staff attorney with the ACLU’s Center for Democracy. “The government’s arguments in defense of Mr. Trabelsi’s detention makes a hash of the Constitution, immigration laws, and its own extradition treaty.” In 2013, the United States forcibly extradited Mr. Trabelsi from Belgium to face criminal charges in the United States. In July 2023, after almost 10 years of highly restrictive pretrial detention, a federal jury cleared Mr. Trabelsi of all charges. But instead of releasing Mr. Trabelsi or returning him to Belgium, the U.S. transferred him to immigration detention, wrongly treating him as an applicant for admission and placing him in the deportation process. Over the years, the Belgian government has issued multiple formal diplomatic requests asking the U.S. to facilitate his return, but the U.S. has refused to send him back. Mr. Trabelsi filed a lawsuit challenging the government's authority to detain him. He also sought immediate improvements to his detention conditions. Those claims were not part of the court’s ruling today, and will continue to be litigated on a separate track. “Mr. Trabelsi only wants to return to Belgium after being illegally extradited to the United States, held for ten years, and then acquitted by a jury of any crimes,” said Nicole Hallett, clinical professor of law and director of the Immigrants’ Rights Clinic at the University of Chicago Law School. “He cannot be held indefinitely and we will continue to fight to make sure that justice ultimately prevails.” Mr. Trabelsi is represented by the American Civil Liberties Union, the University of Chicago Law School’s Immigrants’ Rights Clinic, the ACLU of Virginia, and Professor Jonathan Hafetz of Seton Hall Law School. The complaint in Trabelsi v. Crawford was filed against Jeffrey Crawford, warden of the Farmville Detention Center where Mr. Trabelsi is being held; Liana Castano, ICE field office director for the Washington Field Office; Alejandro Mayorkas, secretary of the Department of Homeland Security; and Merrick Garland, U.S. attorney general.