But state wiretap law probably does not apply to routine stops
By Sara Burrows | Carolina Journal
RALEIGH — Attorney General Roy Cooper will not say whether it is legal to videotape police officers in public places in North Carolina.
At least one local prosecutor suggests it shouldn’t be, though there’s enough ambiguity in the law to leave some civil liberties advocates leery.
Anthony Graber was speeding down the highway on his motorcycle when an off-duty state trooper in an unmarked vehicle cut him off, forcing him to the side of the road. The trooper, dressed in plain clothes, got out of his car, pointing his gun at Graber and yelling before identifying himself as “state police.”
Graber caught the incident on a video camera attached to his helmet and posted the video on YouTube. After the video went viral, police searched Graber’s house, seized his computers, and put him in jail for 26 hours.
Prosecutors say the audio portion of his video violates state wiretapping laws, though the state’s attorney general has issued an opinion (PDF) concluding that it’s hard to consider a police stop a private conversation, and that courts would likely say the wiretapping law would not apply.
Maryland is one of 12 states in which all parties must consent before a conversation can be recorded.
Had Graber been pulled over in North Carolina, he wouldn’t be facing prison time for his recording. North Carolina is a one-party consent state, meaning that it’s legal to record audio as long as one participant in the conversation is aware of it. On the other hand, it is illegal to eavesdrop: recording people without their knowledge if you are not a party in the exchange.
Amanda Martin, legal counsel to the North Carolina Press Association, said it is unlikely a recording made in a public place would be considered eavesdropping.
“Possibly, if someone slipped a microphone into a bush and left, that would be illegal,” Martin said.
Otherwise, she said, “the public and the media both have a First Amendment right to record whatever they can see with their naked eye [on] public property.”
Wake County District Attorney Colon Willoughby said there has to be an expectation of privacy for the eavesdropping law to apply.
“If police officers are conducting police work in a public place — in a traffic stop or a large public gathering — I don’t know why they’d have an expectation of privacy,” Willoughby said.
Recording a conversation between an officer and a person being arrested, with neither party consenting, could be a technical violation of the wiretapping law, he said, “but I can’t imagine a prosecutor would think that warranted prosecution.”
“Suppose you saw the police officer take some property from the person illegally, their wallet perhaps,” Willoughby said. “The value of being able to protect the public from the officer’s misconduct far outweighs the value of the nonconsensual recording.”
Gregg Leslie, legal defense director for Reporters Committee for Freedom of the Press, said the trend of “taping” police has exploded in the last few years.
“Having video capability on cell phones was less common five years ago, and unheard of 10 years ago,” Leslie said.
The advance in technology has led to an advance in citizen journalism, he said.
“It’s allowed journalists to report the news in a more prompt and authoritative fashion, because they have eyewitness accounts captured to electronic memory,” he said.
Police are afraid of this power, Leslie said, and it only makes sense that they’re trying to take it away.
Gov. Bev Perdue did not respond to requests for comment on this story.
Carolina Journal asked Cooper whether he thought citizens violated any law by videotaping on-duty police in public places. Spokeswoman Noelle Talley responded: “Our office can only provide legal opinions to government officials, so we will not be able to give you a legal opinion on this question.”
Sara Burrows is an associate editor of Carolina Journal.