Citizen Counter-Surveillance of the Police? There's an App For That.

Despite the welcome 7th Circuit decisionin ACLUv. Alvarez on May 8 that directed a federal district court to enjoin theapplication of the Illinois eavesdropping statute to an ACLU policeaccountability program, citizens around the country remain vulnerable to arrestand harassment for recording audio and video of police in public spaces. Cases like Glikv. Cunniffe and Alvarez indicate that the tides are changing in favor of FirstAmendment protections of police oversight and, in Illinois, at least two countycourt judges have also found the Illinois eavesdropping statuteunconstitutional.  Some, like the ACLU, have launchedinitiatives to publicly record audio and video of police conduct, and theAlvarez case was pursued by the ACLU specifically to allow ALCU staff tolegally record police without fear of reprisal under the eavesdropping statute.  (Interestingly, this decision comes just as Chicago is bracingitself for violent protests during the NATO summit this weekend.)

Along these lines, manyindividuals have been using a suite of cellphone apps developed by open government activist Rich Jones to record audio andvideo of encounters with law enforcement officers.  Jones launched the OpenWatch.net project in January 2011,which now boasts three smartphone appsdesigned to secretly record citizen encounterswith police officers.  Jones has alsoproduced a version of his software for the ACLU of New Jersey to support theirpolice accountability programs. In arecent interview with Jones, he told me that he launched the project to supply technology "to provide documentary evidence of uses and abuses of power…[as] part of a new wave of document-based journalism." 

"If we're going to lose all of our privacy," Jones says, "then we're damn well going toget some transparency." 

In practice, afterdownloading the OpenWatch or CopRecorder app to a cell phone, a user just needs to open the app and press a button to record audio (in the case of CopRecorder) or both audio and video (in the case ofOpenWatch) through the camera and microphone builtinto their phone.  After hitting "record," the app disappears from view to hide the fact that the user isrecording.  And when the user reopens the app to endthe recording, they are asked whether theywould like to upload the recording to OpenWatch’s public database. 

Jones says he regularlyreceives thousands of uploads from app users, and currently receivesabout one upload worthy of posting online every three days – although, workingalone, Jones has a large backlog and is currently seeking funding to allow himto filter through the data he is receiving. Many of the recordings are traffic stops, and most document perfectlyharmless police/citizen interactions. But Jones claims that other recordings he has received documentevidence of "civil rights abuses at DUI checkpoints insouthern California." 

Jonesalso reports receiving emails from lawyers and police who are looking touse the recordings in trials.  

"The surprising thing is how many police officers areusing the application," Jones says. "They use it to record their encounters with citizens sothey can use it as evidence in court, or to expose internal procedure (covertheir own asses)."

"Some cops have even emailed asking for help getting themedia off of the phone, and one cop sent an extremely upset letter afterrealizing who we were and that he just sent us a confidential recording," he adds.

Liability for Using OpenWatch?

But despite some use of theapps from within the law enforcement community, Jones has also received veryangry emails over the project and has been frustrated at his inability to findpro bono counsel willing to provide advice about the potential legalramifications of the project moving forward. 

One area of concern is the liability of users who make recordings with Jones' apps. While Jones was thrilled by the Glik decision, it is only bindingauthority in a handful of New England states and Puerto Rico. Thus, users ofthe OpenWatch apps remain potentially liable for violations of statewiretapping or eavesdropping statutes elsewhere.  Indeed, the courts in both Glik and Alvarez dealt directly with overt recording activities, andthe fact that the OpenWatch app allows for covert surveillance (by hiding theapp while recording is in progress) might be outsid