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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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