In recent years, as digital cameras become more common and as cameras and recording devices are found more and more often on cell phones, people are beginning to run afoul of police officers by using their cameras or cell phones to capture footage of arrests, stop and searches, pull-overs, and other police activities. Quite often, the phones or cameras are confiscated and the footage erased. However, sometimes the recorders are arrested and charged with a plethora of crimes ranging from interfering with a police activity to violation of wire-tapping laws. In light of the recent attacks in Boston, it’s reasonable to expect that there will be more and more infringements of the rights of photographers and video-recorders in the foreseeable future.
So, is photography a crime? Is it illegal to film an arrest? Keep in mind that no one here is a lawyer and that the answer to that can be “yes,” “no,” or “maybe.”
In general, in most states, you are allowed to film anyone who is in a public space. That includes police officers. The general principle is that if a person is in a public area or a private area accessible to the public (such as a mall), then they have no reasonable expectation of privacy. However, many people, law enforcement included, will take exception to being photographed or filmed. And, some security guards will vow that photographing anything is illegal. So, what is a photographer to do?
First of all, be polite. If you’re confronted by someone who wants you to stop photographing or filming something, ask why. You can generally diffuse the tension if you explain that you’re photographing a particular thing or filming a particular activity.
If the person still insists that you have no right to photograph or film a given area, and if you feel that you really want to argue over it, then simply inform the person that you have the right to photograph or film in public areas or areas that are accessible to the public. If you are in a mall or other privately-owned area, you will want to make certain you’ve read the posted rules in advance and are certain that photography is allowed.
If you are confronted by security or law enforcement, remember that they cannot delete your images or confiscate your equipment without due process. The only exception to this is in the case of where you might have filmed a crime occurring and they need your recording or photos as evidence.
Should you be accosted or arrested for practicing your photography in an area where you know it is legal, you should consult with an attorney in your area as soon as you can for advice on how to get any charges dismissed or to get any confiscated equipment back.
— da Bird