This was something that I wrote previously, for another purpose. I mailed it to a variety of local politicians, and received some feedback on it. Some aspects of it, as written, may conflict with some aspects of the Washington State Constitution in Article I, Section 7. I believe this is incredibly important, nonetheless. I plan on tweaking it and seeing what can become of it.
Dominic Holden, the News Editor at The Stranger, was apparently accosted by some law enforcement for taking their photo. He wrote about it, and is still reporting on it. Something may come of it, because the victim here happened to be a well-known news reporter. When this happens to a regular person, very often nothing comes of it.
This isn’t a unique incident. There is a growing national and international trend where law enforcement has taken offense to the omnipresent nature of video and photography equipment, due to their integration with cellular phones. Many US courts generally have recognized communicative photography in public spaces to be a protected action under the First Amendment.
Regardless, law enforcement officials continue to violate the rights of people engaging in these lawful speech actions, in public areas where there is by law and legal convention never any expectation of privacy. Additionally, States can exceed rights granted to residents beyond Federal levels. Federal agents can search your garbage without a warrant. In Washington, state and lower level authorities cannot without a warrant. The same concept here can be extended to protecting recordings.
This is now such a common occurrence nationwide that there are websites dedicated to cataloging these incidents. The most prominent of these websites is “Photography Is Not A Crime”, which is now so well known that it is routinely referenced by media sources and even law reviews.
I wrote my representatives in the 34th District, and Jamie Pedersen of the 43rd, who is chair of our House Judiciary committee, asking them to create a Freedom To Record Law.
The bullet points of the hypothetical law would be this:
- Positively affirm that all people have the legally protected right to engage in photography, video recordings, or audio recordings in public areas.
- Define broadly the lawful, protected acts of recordings in public spaces and extend the definition to private spaces where you have a reasonable expectation to be (like your home, a supermarket, a bus, or a train station).
- Make it a criminal offense to directly or indirectly interfere with the protected acts, including both personal financial and criminal penalties for the individual interfering with the protected acts, or to threaten retaliation or intimidation over recordings.
- Include enhanced penalties when the criminal interference with recording is a violation of constitutional rights or result in damage or destruction of your equipment or data.
- Specify that law enforcement can recover your data for evidence, but they must provide you a chance to backup or transmit the data for your own safekeeping beforehand. Make it a criminal offense to interfere with this right to “transmit” or “backup”.
- Mandate a “Duty to Report” for law enforcement of any knowledge of violations of this law by any other law enforcement, with criminal penalties if you’re found later to have violated the Duty to Report knowingly.
We are a nation of laws, and the First Amendment comes first for a reason. No one should be able to get away with violating the law that is the cornerstone of our Constitution, no matter what their role in society or job is.