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You can keep recording people in public, but don’t capture their faces

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Sometimes you see something happening out in the world, and you feel compelled to record it. You just have to capture it. Is that okay? Legally, are you allowed to record someone without their permission? And what happens if you go viral, then what? It’s murky territory, both legally and as human beings, but we’re going to tackle it on Why’d You Push That Button this week.

On this episode, we talk to Porscha Coleman, who recorded an infamous Apple Store Vine, as well as Carlye Wisel, who was once fashion-shamed on Snapchat by a stranger. They have completely opposite beliefs on recording, and we love to facilitate a debate. Then we talk to a couple experts — Jennifer Ellis, a lawyer, and Katherine Cross, a sociologist — who help us figure out when we can record and why we feel like we have to capture other people.

You can listen to the show below, and follow along with the transcript of our conversation with Jennifer. Feel free to subscribe anywhere you typically get your podcasts. You know our usual places: Apple Podcasts, Pocket Casts, Spotify, Google Podcasts, and our RSS feed. Subscribe your friends, too! Steal their phones and just sign them up for the podcast; they’ll love it.

Ashley: Can you tell us what’s allowed? Can we actually record in public?

Jennifer Ellis: Hard rules from a lawyer. Lawyers will never give you hard rules because the answer always is, “it depends on the specific situation.” Of course we’re talking about the United States, that’s the first thing I need to say, and the second thing I need to say is when you deal with state law, the laws vary greatly across the country, and then we have federal law, as well. Generally speaking, though, when you are in public, it is legal to record someone, video record or audio record, as long as they don’t have what is called, “an expectation of privacy,” or rather a reasonable expectation of privacy. And generally in public, you do not have a reasonable expectation of privacy and so you can record people.

Kaitlyn: Can you define a reasonable expectation of privacy?

You have a reasonable expectation of privacy on the phone, meaning you cannot just record somebody you’re having a phone conversation with unless you are in a one-party consent state and you consent, or you’re in an all-party consent state and every body consents. The other thing to understand is that video recording and audio recording are not the same thing. For video recording, if there’s no sound, you actually can get away with a lot more than you can with an audio recording. If you are in your home, your personal home, and other people start recording you, generally speaking, you have a reasonable expectation of privacy in your home, though other people in your home do not, unless it’s in the bathroom or perhaps the bedroom where they’re spending the night, something along those lines.

It’s important to understand, though, that people can set rules for their own buildings, even if it’s a government building. So if you go into a Starbucks, and they say, “Put your camera down. You’re not allowed to film in here,” they can do that because it’s a private business. If you come into my house, and I say you are not allowed to record in my house, and you start recording, you are violating my rules. And the moment I tell you to stop, and you fail to stop, and then I say, “leave,” and you fail to leave, now you’re trespassing.

Ashley: One of the users we interviewed filmed a woman in an Apple Store going off, and I guess in theory it sounds like the Apple Store could have had its own rules about recording that she might not have been aware of, even though in her mind it was a public space.

Correct. Of course, Apple would have to tell her, “Leave. Stop recording.” And of course a lot of private spaces that are public, let’s say you’re in a gym, for example, it’s one thing to record in the gym. Let’s say there’s no specific rules, and you start recording somebody. It’s another thing if you start recording in the locker room. If you take a picture of somebody partially undressed or as they’re dressing in a locker room or in a bathroom, now you’re violating a whole different set of rules. We as a society generally expect that as we’re undressing or dressing we have an expectation of privacy. And it’s reasonable to have that expectation. I’m thinking back to the model who shamed a woman — took a picture of her in a partial state of undress and then shamed her. That’s actually a criminal case because when you take a picture of somebody in a state of undress, you’re going beyond just simply recording someone in public. You’re violating their privacy in an extreme way, and you really want to be careful if the person is underage because if they’re underage, even if you don’t know, now we have a child pornography problem.

Kaitlyn: People feel like they can take a picture at any time on the subway.

They can. There’s no reasonable expectation of privacy on the subway.

Ashley: But isn’t the MTA the owner, so wouldn’t it be a private space?

Well the MTA could say you’re not allowed to, certainly, and then they could try to enforce those rules. But it’s not going to be a crime. At the most it’s going to turn into trespassing and as long as you leave, it’s very unlikely that you’re going to face any charges.

Kaitlyn: To move this to the next friction point, how does the law apply to the way these images and videos are disseminated? What obligations do platforms, like Snapchat, or Instagram, or Twitter, or Vine, have?

Here in the United States, we have laws that provide a great deal of protection to the websites. The person responsible for posting is the person who would have any, for the most part, any legal ramifications, not the website. However, the law does require that if the item, if the image should violate the law, whether it’s violating copyright or violating child pornography rules or violating some other law, that there be a methodology through which you can ask the website to take it down, but that would be... let’s say you recorded a video of yourself, you have copyright in that video, and people can’t just share it. You know the copyright on the internet confuses a lot of people. A lot of people think, “if it’s on the internet, I can share it. It’s not a big deal.” But that’s actually not true. The person who recorded the video or took the photo owns copyright in it, and they can choose to enforce that. You see that a lot with the viral videos where people get upset because they want to make money off their video, and they’re upset that people are copying the video and sharing it. Now, a lot of people don’t care, but I’ve certainly had people call me and say, “My viral video, on which I’m making money because I have commercials on it or I’m selling it to the news. I’m losing money because other people are sharing it, and what should I do about that?” That’s a copyright issue.

You have to be careful in assuming that you’re just sharing something because it’s on the internet is okay. And that’s actually where we’ve seen successful suits. If you record a video of me in the public, and I don’t like the video, and people are being mean, I really can’t do much about that. It didn’t violate my copyright. It didn’t violate any laws. It really was in public. I didn’t have any reasonable expectation of privacy, and so you could record me, and you could post it. Where the trouble arises is if you try to make money off of me. I have something called the right of publicity, which means I have the right to control who makes money off of my image. And the most famous one of these cases I can think of is the one involving, I think he was called the Viking warrior or something. It was a guy dancing after he had helped somebody who was being bullied, and what happened was the person who recorded the video ended up making some money off of it. And that’s where he got in financial trouble, and there was a lawsuit. He ended up having to give the money up.

Ashley: I don’t know how people are making money off viral videos.

Kaitlyn: Well, like a YouTuber.

You don’t actually see many suits like that because normally the people aren’t making enough money, or people just can’t hire a lawyer. Let’s be honest: lawyers are expensive. Or most people just don’t know that they have a right to control their right of publicity. On the other hand, like I said, if all they’re doing is posting it, and that video goes viral, even if really mean things happen as a result, even if the person gets bullied, even if the person gets death threats, there’s really not much to be done about it, as long as the underlying recording was legal. And that’s because we have two ways you can sue somebody and have compensation if somebody causes you emotional distress. One is called negligent infliction of emotional distress, and the other one is called intentional infliction of emotional distress.

And the laws for these two things vary greatly around the country, but negligent infliction of emotional distress doesn’t really apply. The law just doesn’t really fit to viral videos. Intentional infliction of emotional distress would require that the person really set out to hurt you. Really engaged in outrageous and horrific behavior themselves and meant to harm you. And we don’t see that in these things most of the time. All we see is somebody happened to record something. They have no idea it’s going to go viral, and even if they did think it was going to go viral, they’re not responsible for the bullying conduct of other people or the death threats by other people. If there are death threats, you go to the police.

Ashley: I think it would be good to talk about police brutality videos, if you could talk about the legality there.

The first thing I want to say is in my experience, most police who get recorded handle it pretty well. I’ve seen many recordings where the police just pretty much ignore it, and that’s what they should do. The only way the police should interfere with a recording is if the person doing the recording is interfering with their ability to do their job. There are police who don’t understand that the public has a right to record them, both because they have no reasonable expectation of privacy when they are out in public, just like anybody else, and because they are acting as public servants, and they are doing their jobs, and it’s certainly something of public interest. So you are correct, in your assessment of what I would say, it is perfectly legal to record the police when they are out in public doing their job, as long as you in no way are interfering with them.

The problem is that some police do not understand this. They take the law that says you cannot record someone who has a legal reasonable expectation of privacy, and they decide it applies to their specific circumstance. And they will order you to stop, even though you’re not causing any trouble. Or they’ll try to delete the video, which is completely illegal — they cannot do that. So we see people getting arrested. So if I was advising someone — I cannot obviously give legal advice that would be inappropriate — but if I was advising someone, I would say, if they tell you to step back, step back, even if you don’t think you’re interfering because the court is going to give the officer deference as to whether you were interfering. So step back. If they tell you to stop recording, and you refuse, now you have to do a risk assessment, and your risk assessment is, will they arrest me even if it’s wrong to arrest me? And can I deal with that? That’s something you have to decide. That’s really all I can say about that.

Ashley: Conversely, you have police wearing body cams, so you have them recording people without their consent.

Yes. That becomes an issue, of course, when they’re in your home. But once you’re being involved with the police, you can just assume that your reasonable expectation of privacy goes away.

Ashley: So taking this whole conversation together, it kind of sounds like everybody can just keep on going ahead with those viral videos, assuming you don’t get told to stop recording in a private store, or in certain circumstances. For the most part, it sounds like, yeah, these viral videos are going to keep happening because the law isn’t going to prevent them. It’s going to have to be more of a societal cultural expectation of like, “It’s not cool to do this thing.”

You are 100 percent correct. As long as the person is in public, as long as they do not have a reasonable expectation of privacy, these recordings are 100 percent legal. So if we don’t want them, that is a societal issue because I cannot begin to think of a law that would be constitutional that would stop it.