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Nov 1, 2011

Reversing the panopticon: police officially relaxed about being filmed

The proliferation of mobile phones is infuriating American police, who object to being filmed at work. Australian police say they're a lot more relaxed.

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In 2007, Simon Glik was walking past the Boston Common and saw three policemen forcefully arresting a young man. He took out his mobile phone and filmed the arrest. The police then arrested him and confiscated his phone. After the Boston Police Department refused to investigate his complaint against the officers, Glik sued the city. Three months ago, the US Court of Appeal finally upheld his suit.

Last year, National Guard sergeant Anthony Graber was pulled over for traffic offences by a plain clothes Maryland policeman. He filmed the encounter and posted it on YouTube, after which he was arrested, his property searched and electronic equipment confiscated. He was arraigned on charges for which he faced 16 years in prison. A Maryland court threw out all but the traffic offences.

In September, a series of incidents prompted the Philadelphia Police Commissioner to issue a memo to his department telling them that the public had a right to film them doing their jobs. But in Illinois, authorities have tried to use an obscure state eavesdropping law to prosecute people filming police officers — including Tiawanda Moore, who recorded two Internal Affairs police officers who tried to convince her to drop a s-xual harassment complaint against another officer.

Those are just some of many cases across the US proliferating because of the ubiquity of mobile phones with cameras. Whenever there is a public disturbance of any kind, mobile phones shoot up like gophers to record what’s happening.

Some police now take more direct action than waiting for prosecutors. After shooting a motorist in June, Miami police held a witness at gunpoint and smashed the phone he had used to film the aftermath. Police later claimed they had merely confiscated the (now-broken) phone and that the witness resembled a suspect in another crime. Social media reports of the police break-up of Occupy protests in the US include police smashing or seizing mobile phones. Others are being more subtle: New York police shut down power outlets that were being used by protesters to recharge mobile device batteries during the Occupy Wall Street protests in September. The technology already exists to enable the remote shut down of iPhone cameras, even if reports that Apple wanted to do so proved a tad hysterical.

As the cases demonstrate, a lot of American police departments don’t like their officers being filmed. Right from the time recording devices were invented, authorities had a monopoly on surveillance of citizens. The spread of hand-held, mobile recording devices has ended that monopoly: now police, security forces and armies must operate with the knowledge they may well be filmed during the course of responding to unrest. While citizens may face an ever closer panopticon-like state of permanent surveillance by CCTV, facial recognition software and mobile phone and internet monitoring (and, for that matter, being filmed by other members of the public themselves), authorities themselves are now under far more surveillance than ever before.

The sharp end of this reversal of the panopticon has been seen in the Arab Spring, with citizen-produced video used to record the behaviour of security forces, motivate people to participate and compile material that can later be used by authorities prosecuting war crimes and crimes against humanity, which have traditionally relied on eyewitness testimony and documentary evidence. True, video can be used by régimes to identify protesters, but dissidents in Syria are growing more sophisticated in the use of protest footage, offshoring processing and uploading and digitally obscuring the faces of protesters on footage.

Australian police forces, it turns out, claim to be a lot more relaxed than their American counterparts on the issue. There were claims on social media in the wake of the break-up of the Occupy Melbourne protests that police were seizing or smashing phones. Crikey asked a number of forces for their views on the ubiquity of mobile phones and the increasing likelihood officers would be filmed in the course of their duties. Responses were mostly in line.

“The public can film whatever they like,” South Australian Police told Crikey, summing up the general line from police. “If they’re [police officers] in a public place they should be aware they could be filmed by anyone.” A Victorian Police spokesperson said: “There are no restrictions on any person filming or taking photos within public places, this includes members of the public and media.” That suggests anyone who had a complaint about their treatment could pursue an official complaint process.

There was a similar story from other forces. The ACT arm of the AFP stated: “Members of the public have the right to take photographs and/or film police officers, and incidents involving police officers, which are observable from a public space, or from a privately owned place with the consent of the owner [or] occupier.” NSW Police: “Police do not have the power to prevent anyone from photographing or filming them and cannot confiscate camera equipment or delete images and recordings.” The West Australians specifically referred to an incident where a police officer was convicted of assault after being filmed on a phone: “We see it as more of a benefit than a hindrance as it helps ensure that all WA Police are ‘in the right place at the right time doing the right thing’.”

A few — the AFP, the WA Police and the Queenslanders — noted that if filming obstructs police, they may ask for it to be stopped. NSW noted other possible exceptions, “including under anti-terrorism legislation and if the filming or photographing constitutes an offence such as offensive conduct”. Queensland Police, however, opened a door to police seizing phones: “There are occasions when photographs or video taken during a police action may form evidence in an investigation, and officers will take steps to secure that evidence if necessary.”

But, officially, none of the police forces we contacted had a problem with being filmed.

Apparently relaxed, too, is Customs, which has prominent warnings at international airports that mobile phones and cameras are not to be used, warnings also offered by some airlines prior to disembarkation. “Customs and Border Protection has recently evaluated the signs on display at airports around Australia and signs are being progressively replaced to make it clear that ‘unauthorised’ use of cameras, mobile phones or other electronic devices is prohibited by the Customs Act 1901,” a Customs spokesperson told us.

Customs “allows passengers to use their cameras or mobile phones unless they are undergoing a clearance process, or if they are asked not to by a Customs and Border Protection officer”. That would happen “where it is believed that the use of the camera or mobile phone may impede officers from carrying out their duties, or pose a risk to the border”: “The legislation does not constrain a person from using their camera or mobile phone in a Customs controlled area unless such use impacts on border management.”

Keep an eye on whether this relaxed attitude is maintained as police find themselves under surveillance more and more. And if your experience is different from the official line offered by police, drop us a line.

*Additional research from Crikey intern Alexander Cornwell

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16 comments

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16 thoughts on “Reversing the panopticon: police officially relaxed about being filmed

  1. Jonathan Nolan

    It’s worth qualifying this article with the point that public transport is not “public property” – at least in Victoria. You need permission to film on train station grounds in Victoria, and police have the right to arrest you if you don’t have a permit.

  2. Meski

    @Jon: Just what I was thinking. You can expect new and interesting definitions of public real soon now.

  3. Meski

    Further, re train stations, aren’t the police being proactive in enforcing this for another government department? Will they spread this enforcement to private property, for instance a cafe, without being asked to do so by the cafe owner (or would it be the landlord of the property?) (if the latter, do you suppose the government is the landlord of all the properties its departments are on?)

  4. D

    As I understand it, filming on private property is at the discretion of the owner… however, you cannot get arrested for doing so – only removed from the premises. I don’t believe there is any law allowing confiscation of cameras or or the photos in question either.

    Obviously there are specific laws (based on knee-jerk anti-terrorism legislation) pertaining to transport infrastructure. The story in question, however, pertained to the officers mistakenly believing they had the right not to be filmed and attempting to enforce that. The revision of the charge was after the fact.

  5. MIKESTUCHBERY

    Plainclothes police seemed to have no problem being filmed at Occupy Melbourne.

  6. Edward James

    I watched a report last week on plain clothes police using covert video equipment on drinkers in hotels. The police wanted to monitor the responsible service of alcohol.

  7. Lord Barry Bonkton

    If the police have nothing to hide ? And are doing nothing wrong , Why are they so nervous about it ?

  8. JungleDogs

    Does this report cover all recording devices, such as dictaphones?

  9. thejames

    The best resource I’ve found for the various legal questions surrounding public photography is Andrew Nemeth’s site http://4020.net/words/photorights.php

  10. Peter Ormonde

    D:

    Bad enough our police persons being picced by the public paparazzi … but then in response to a bit of light bullying the clicker turns out to be some stroppy solicitor shiela who seems knows her rights!

    How long can this continue? When will lawyers be required to wear tags or uniforms so that the wallopers know who they can and cannot push around?

    I’ll betcha that this “lawyer” was looking a bit scruffy – like a backpacker – heading off to the bush incognito with boots and an anorak. If she’d been wearing a wig or a name tag – or even a nice Carla Zampatti outfit – then this ugly little incident would never have happened.

    And now there are even Aboriginal lawyers running about! It’s getting harder and harder this modern pleecing innit… not knowing who to bash or bully? Time was when any koori was a legit target for a little taser practice.

    Best they tag the lot of us!

    Seriously – a shocking story and it happens every single day … but not too often to scruffy looking lawyers. Can’t help bad luck canya Constable?

  11. Matthew of Canberra

    Don’t anybody confuse this with being allowed to secretly record conversations, though. In most states, that is illegal and comes with some pretty steep consequences if you’re caught and prosecuted.

    I have a friend whose job requires a fair bit of photography in public spaces (not a journalist – he does contract work for real estate companies). He’s (apparently) always running into aggro from people who don’t know that there aren’t any laws to prevent anybody from taking photographs of anything they like in a public space. This being canberra, there’s a strange assumption that certain official buildings are somehow protected, but they’re not. Unless an area is officially “protected”, you’re free to photograph or video anything you like.

    I’ve been toying with the idea of putting a video camera in my car to record the increasingly frequent madness that drivers here get up to. Basic awareness of road rules just isn’t what it used to be, and I’d love to have some of the things I see on camera just so I could show them to people. As I understand it, I could even put them online if I wanted to – without even blurring number plates. I’m not sure I’d do that though. Mostly because I’d expect that sooner or later somebody would retaliate.

    Actually, I think I might go buy that camera now … jaycar’s open.

  12. Peter Ormonde

    Matt of Cambra

    I’ve seen – not watched mark you – just seen… these awful TV shows about American cops going about their business. Their squad cars apparently have video recorders built in to collect and record evidence of our crimes and they are permanently running.

    Now I like this idea … it makes great and extremely cheap TV. But I wonder why it is only the cars being cammed -up.

    I would like to see every Aussie copper wearing a camera and mike, recording everything they see and do through the shift. Call it “Gut cam”. Same principle. But I’d reckon a very different outcome.

  13. VC17

    Interestingly, the examples provided by Bernard were all US-based with a seriously different legal framework governing people’s rights.

    As a former police officer I would have expected the responses from the various State forces on their position. Even when I left 10 years ago, we were training the recruits to expect to be filmed or recorded. Nothing makes a better ‘behaviour modifier’ then knowing that there may be an undisputable record of events happening… and that works both ways.

    As the cameras, and more importantly the battery packs, became smaller and lighter various Police Forces have trialled cameras fixed onto officers (in amongst the pistol, handcuffs, baton, spray, first aid kit, radio etc etc) and cost has usually been the (claimed) factor preventing widescale use. Many officers purchase these personally now as protection for themselves in the event of false complaints.

    Not withstanding that, anyone who thinks that they can travel through any of our cities (and increasingly many regional towns) without being filmed by the various ‘city-safe’ and other surveillance camera is kidding themselves. Call it ‘big brother’ if you wish but when it gets used for the proper purpose of protecting the wider community, including preventing improper or excessive use of force by police, then the benefits outweigh any person’s perceived infringement of their privacy… not that you have much of that when you step outside your front door.

    At the risk of more inane ‘reality cop shows’ the benefits of preventing false complaints against police and providing that ‘behaviour modifier’ factor are positive.

  14. Stevo the Working Twistie

    From what I could see after the Occupy Melbourne protest was broken up, the definition of “Public Space” is “an area surrounded by temporary fencing, being patrolled by police and City security guards with dogs to prevent the public from entering it”. Hope that clears everything up.

  15. Edward James

    Oh dear, cameras in cars has been around for years. Our Australian Police now do that as a matter of due process. I have discussed in car cameras with people who have a problem with Police. It is clear to me the idea citizens may want to come together and discuss the way we are governed or mis governed while considering their introduction of video records to protect themselves. stop pissing about andf get right into video and sound record keeping anytime soon Barry Obarrell !

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