USC Annenberg Media Resources

Videotaping and recording in public in California: the basics

The ins and outs of the law  could (and does) fill up manuals, but here are some basics and rules of thumb:

You have the right to record video of police or public officials engaged in the performance of their official duties if those activities are visible from public places.  

What’s a public place?  Anywhere that any member of the public can legally access.   This includes public transit facilities and parks.

If you’re on private property, you should follow the directions of the security guard, a police officer or the property owner.  Do not, however give up your camera or tape recorder.  They have no legal right to seize it unless they have strong reason to believe it contains evidence of a crime.

 

If, in public, a police officer orders you to stop recording, you should, first:

— identify yourself as a journalist, firstly;

— if the officer continues to request that you stop, explain that you are reporting on a story.

— explain that you understand that the officer can, in a general sense, order citizens to stop activities or actions that interfere with law enforcement operations.   Assure the officer that your intent is not to interfere. Ask the officer to explain how your conduct interferes with legitimate law enforcement operations.  Offer to move a bit further away.

As tempting as it might be, do not attempt to “pull rank” on the officer; be persistent, but polite; don’t threaten to sue the officer or give him or her a reason to escalate the situation.

Because the Metro is technically government property — not a pubic commons or thoroughfare, not a sidewalk — officers might think have more discretion.  A police officer might say that her job is to keep order on the Metro, and if your video camera is seen as a threat to order, then she might think she has the right to order you to stop.  She does not. It is better to keep your footprint small, though. Shooting with large cameras, tripods and sound equipment will attract attention in ways that shooting with a smaller camera and no crew will not.

A station manager cannot force you to stop  recording.  Explain that you are a member of the media and engaged in newsgathering.

DO NOT GIVE UP YOUR TAPE RECORDERS, VIDEO RECORDERS AND MEDIA.

Are private university campuses private property?  It depends.  As a student at USC, you have the right to be here. As a journalist, you have the right to commit journalism while being here.  General shots of hallways, classrooms, students interacting in common areas, and the outside of offices are fine.

RECORDING CONVERSATIONS BETWEEN PEOPLE IN PUBLIC AND PRIVATE

Remember, even if you’re in public, you cannot record conversations between two people unless you have their permission.  This includes conversations that you’re one of the parties to.  If one person in the conversation can reasonably expect his or her conversation to be confidential, this standard applies.

If the person is standing on a soapbox on a corner, it does not. If the person is attending a government hearing and is speaking, it does not.  If the person is shouting, yelling, or speaking to a large group of people without apparent concern for who might overhear him or her, it does not.

So if you ever are unclear, ask yourself whether you, in a similar scenario, would reasonably suppose that your conversation with someone else (or others) was private.  There will always be gray areas, and “reasonableness” often depends upon the facts a particular situation.

You CAN however, record video OF two people interacting so long as

–your video does not capture the audio of their conversation

–the subject of the conversation is not apparent from the video

–the two people talking are in a public place

Note that California law prohibits hidden video recordings in private places.

In California, you cannot trespass in order to obtain pictures.  (It doesn’t usually stop the paparazzi, but photographers have been prosecuted for violating this law.)

 

The ACLU of Southern California has a very good primer:

Photographers’ Rights

Taking photographs of things that are plainly visible from public spaces is a constitutional right – and that includes federal buildings, transportation facilities, and police and other government officials carrying out their duties. Unfortunately, there is a widespread, continuing pattern of law enforcement officers ordering people to stop taking photographs from public places, and harassing, detaining and arresting those who fail to comply.

Your rights as a photographer:

  • When in public spaces where you are lawfully present you have the right to photograph anything that is in plain view. That includes pictures of federal buildings, transportation facilities, and police. Such photography is a form of public oversight over the government and is important in a free society.
  • When you are on private property, the property owner may set rules about the taking of photographs. If you disobey the property owner’s rules, they can order you off their property (and have you arrested for trespassing if you do not comply).
  • Police officers may not generally confiscate or demand to view your photographs or video without a warrant.If you are arrested, the contents of your phone may be scrutinized by the police, although their constitutional power to do so remains unsettled. In addition, it is possible that courts may approve the seizure of a camera in some circumstances if police have a reasonable, good-faith belief that it contains evidence of a crime by someone other than the police themselves (it is unsettled whether they still need a warrant to view them).
  • Police may not delete your photographs or video under any circumstances.
  • Police officers may legitimately order citizens to cease activities that are truly interfering with legitimate law enforcement operations. Professional officers, however, realize that such operations are subject to public scrutiny, including by citizens photographing them.
  • Note 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 trespass.

If you are stopped or detained for taking photographs:

  • Always remain polite and never physically resist a police officer.
  • If stopped for photography, the right question to ask is, “am I free to go?” If the officer says no, then you are being detained, something that under the law an officer cannot do without reasonable suspicion that you have or are about to commit a crime or are in the process of doing so. Until you ask to leave, your being stopped is considered voluntary under the law and is legal.
  • If you are detained, politely ask what crime you are suspected of committing, and remind the officer that taking photographs is your right under the First Amendment and does not constitute reasonable suspicion of criminal activity.

Special considerations when videotaping:

With regards to videotaping, there is an important legal distinction between a visual photographic record (fully protected) and the audio portion of a videotape, which some states have tried to regulate under state wiretapping laws.

  • Such laws are generally intended to accomplish the important privacy-protecting goal of prohibiting audio “bugging” of private conversations. However, in nearly all cases audio recording the police is legal.
  • In situations where you are an observer but not a part of the conversation, or in states where all parties to a conversation must consent to taping, the legality of taping will depend on whether the state’s prohibition on taping applies only when there is a reasonable expectation of privacy. But that is the case in nearly all states, and no state court has held that police officers performing their job in public have a reasonable expectation. The state of Illinois makes the recording illegal regardless of whether there is an expectation of privacy, but the ACLU of Illinois is challenging that statute in court as a violation of the First Amendment.
  • The ACLU believes that laws that ban the taping of public officials’ public statements without their consent violate the First Amendment. A summary of state wiretapping laws can be found here.

Photography at the airport

Photography has also served as an important check on government power in the airline security context.

The Transportation Security Administration (TSA) acknowledges that photography is permitted in and around airline security checkpoints as long as you’re not interfering with the screening process. The TSA does ask that its security monitors not be photographed, though it is not clear whether they have any legal basis for such a restriction when the monitors are plainly viewable by the traveling public.

The TSA also warns that local or airport regulations may impose restrictions that the TSA does not. It is difficult to determine if any localities or airport authorities actually have such rules. If you are told you cannot take photographs in an airport you should ask what the legal authority for that rule is.

The California Digital Media Law Project also has a handy Q and A for specific scenarios.

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