https://www.eff.org/deeplinks/2020/06/you-have-first-amendment-right-record-police

Like the rest of the world, we are horrified by the videos of George Floyd’s murder. Once again, police brutality was documented by brave bystanders exercising their First Amendment rights. Their videos forcefully tell a painful truth that has further fueled a movement to demand an end to racism and abuse of power by police officers.

Recordings of police officers, whether by witnesses to an incident with officers, individuals who are themselves interacting with officers, or by members of the press, are an invaluable tool in the fight for police accountability. Often, it’s the video alone that leads to disciplinary action, firing, or prosecution of an officer.

This blog post provides some practical tips to record the police legally and safely, and explains some of the legal nuances of recording the police.

What to Know When Recording the Police

• You have the right to record police officers exercising their official duties in public.
• Stay calm and courteous.
• Do not interfere with police officers. If you are a bystander, stand at a safe distance from the scene that you are recording.
• You may take photos or record video and/or audio.
• Police officers cannot order you to move because you are recording, but they may order you to move for public safety reasons even if you are recording.
• Police officers may not search your cell phone or other device without a warrant based on probable cause from a judge, even if you are under arrest. Thus, you may refuse a request from an officer to review or delete what you recorded. You also may refuse to unlock your phone or provide your passcode.
• Despite reasonably exercising your First Amendment rights, police may illegally retaliate against you in a number of ways including with arrest, destruction of your device, and bodily harm. We urge you to remain alert and mindful about this possibility.

Your First Amendment Right to Record Police Exercising Their Official Duties in Public

You have a First Amendment right to record the police. Federal courts and the Justice Department have recognized the right of individuals to record the police. Although the Supreme Court has not squarely ruled on the issue, there is a long line of First Amendment case law from the high court that supports the right to record the police. And federal appellate courts in the First, Third, Fifth, Seventh, Ninth, and Eleventh Circuits have directly upheld this right. EFF has advocated for this right in many amicus briefs.

Federal appellate courts typically frame the right to record the police as the right to record officers exercising their official duties in public. Thus, if the police officer is off-duty or is in a private space that you don’t also have a right to be in, your right to record the officer may be limited.

Special Considerations for Recording Audio

The right to record the police unequivocally includes the right to take pictures and record video. There is an added legal wrinkle when recording audio—whether with or without video. Some police officers have argued that recording audio without their consent violates wiretap laws. Courts have generally rejected this argument. The Seventh Circuit, for example, held that the Illinois wiretap statute violated the First Amendment as applied to audio recording on-duty police officers.

There are two kinds of wiretaps laws: those that require “all parties” to a conversation to consent to audio recording (12 states), and those that only require “one party” to consent (38 states, the District of Columbia, and the federal statute). Thus, if you’re in a one-party consent state, and you’re involved in an incident with the police (that is, you’re a party to the conversation) and you want to record audio of that interaction, you are the one party consenting to the recording and you don’t also need the officer’s consent. If you’re in an all-party consent state, and your cell phone or recording device is in plain view, your open audio recording puts the officer on notice and thus their consent might be implied.