Thursday, February 22, 2007

Who's Private in Public These Days?

While I welcome Judge Haight's decision barring the NYPD from photographing and videotaping political demonstrations, it seems almost quaint, considering the ubiquity of surveillance cameras (private and public) that record so many of our public moves, routinely and without notice. In addition, we’re apt to be captured on tape by fellow citizens armed with video cameras, on the look-out for whatever behavior they consider worth exposing on the Net.

As Jennifer Saranow recently wrote in the Wall Street Journal, websites capturing "the most trivial missteps by ordinary folks" are proliferating. If you’re not caught on tape by self-appointed scourges of bad dressers or inept parkers, you might be recorded by an independent journalist, like Josh Wolfe, the 24 year old video blogger currently in prison for contempt for refusing to give a federal grand jury his tape of an anti-globalization protest. Wolfe recently broke the record for time spent in prison by a journalist charged with contempt; his tenacity is admirable and probably quite unusual. (Update/April 4: Wolfe was just released from prison after striking a deal that required him to surrender his tape but absolved him of any obligation to testify before a grand jury.)

How many people would refuse to turn over their tapes or photographs when ordered by a court –especially if they’re simply voyeurs who don’t regard themselves as journalists? Not everyone taping a political protest would decline to cooperate with police, and whenever you attend a protest these days, you should probably assume that someone is taping it. So the question is: if other federal and state courts follow the lead of the 9th Circuit Court of Appeals in Josh Wolf’s case and decide that that law enforcement officials have the right to obtain tapes made by private individuals, including journalists, how much will Judge Haight’s decision matter?

First Amendment | NYPD | Surveillance

2/22/2007 5:16:27 PM by Wendy Kaminer | Comments [0] |

Wednesday, February 21, 2007

Remaining Private in Public

I recall walking into the Cambridge Police Department headquarters in Central Square one day during the peak of the Vietnam era anti-war protests. Looking for a particular officer, I accidentally wandered into an office maintained by the “intelligence” unit of the department. There I came across a wall of photographs spanned of college students and Cambridge residents at local anti-war demonstrations. The police had circled a number of faces and written the names of the protestors above the circles. Given the utterly peaceful nature of the demonstrations and their protected status under the First Amendment, I felt a chill run up and down my spine. I sensed that the moment one of these “troublemakers” did something that could even remotely be seen as a crime, the cops would be there, handcuffs in hand, lying in wait – not because of an arguable crime, but because of the citizen’s political views.

That’s why I was relieved to read a decision from Federal District Judge Charles Haight in Manhattan this week that barred the NYPD from photographing and videotaping political demonstrations. While the police, like the rest of us, are free to attend a public demonstration, Haight wrote, they are prohibited from videotaping or photographing any individual or group engaging in public political activity without having some basis for the heightened surveillance.

Haight’s decision is the latest order in a long-running lawsuit between the NYPD and the politically active citizens of the Big Apple that began back in 1971 and continues to this day. The decision does not exactly establish a precedent for other areas of the country, since the basis for the order is Judge Haight’s interpretation of a settlement of the original class action, as modified after the terrorist attack of 9-11-01 on New York City. Still, the order does put weight behind the notion that even though the police may view a public display of political protest or opinion, they may not take the additional step that experience shows can inhibit citizens from exercising their constitutional right, under the First Amendment, to speak freely and “to petition the government for a redress of grievances.”

Judge Haight sought to draw a line that would preserve some semblance of civilized police restraint in an era where it is generally – although not universally – agreed that earlier, more innocent practices must be somewhat compromised in the name of national security. The original class action lawsuit was brought while the Vietnam War and protests against that war were raging. One hopes we will be able to preserve a similar modicum of civilized freedom here in the Hub of the Universe, the City on a Hill. If they can do it in the Big Apple, we should be able to do it here.