Once again it has been too long since we’ve crossed paths here; to be fair I am a criminal defense attorney, not a blogger. Also, you might have heard that Sartorius Kirsch has been pretty busy recently. Enough pleasantries, we are back to discuss an app through which Siri can secretly record police, but is it a good idea? We are confident people have said, and will say, incorrect things about the relevant laws. We are also pretty confident odds makers on what you will be hearing about the app before too long.
Business Insider is reporting on a new shortcut for iOS called, “Police.” To make a fairly short story even shorter, there is an app called “Shortcuts” that allows you to create workflows utilizing your iPhone’s apps. “Police” is among several voice activated shortcuts. You can program the voice commands that start workflows, and the reporters writing about this are really hoping you will pick, “Siri, I’m getting pulled over,” to start the workflow. You can tell by their repeated references to that phrase. Whatever you choose, once activated, the shortcut sends your phone into a surreptitious recording mode. The idea is you may see fit to record officers without them knowing. But, just because Siri can does not mean Siri should.
Is that legal?
Well, that would be legal advice, which you do not get on a blog. You get that by calling us and letting us represent you. That said, “yes” is a popular answer from the courts. Some analysis of this issue has focused on whether the officer in the recording has a reasonable expectation of privacy, but that nearly begs the question and isn’t generally the focus. Thanks to our former governor, the Missouri legislature does make reasonable expectations of privacy a focus in some laws. However, recent cases about recording officers are concerned with your First Amendment right to information regarding public officials. Most recently on the topic, the Third Circuit expressly found a right to record police in public. Not only does the First Amendment protect freedom of speech and press, the courts have found, but also “the public’s right of access to information about their officials’ public activities.”
As also mentioned in that decision, every federal appeals court to address this issue has agreed. This trend began in 2011 with a decision from the First Circuit. That case arose from the Boston Common; quintessential First Amendment grounds. These cases indicate that there is no expectation of privacy issue. There is no, “the officer doesn’t want you to record,” issue. And, there ought not be any “obstruction” issue, so long as you are otherwise out of the way. The courts have, so far, consistently found that we have the right to record police while they are carrying out their duties in public. This article from The Atlantic is a good, maybe dated, summary of the state of the law.
This post is not an invitation to shove cameras in officers’ faces, though. The Eighth Circuit, in which Missouri rests, has not ruled on this issue. In fact, the Eighth Circuit has hinted that it would find no First Amendment right to record. Additionally, neither the U.S. Supreme Court nor Missouri courts have addressed this issue. We lack local guidance on this particular question and cannot be certain, but the courts seem to be on pro-Siri path.
What we can be almost certain of is the reaction from some in law enforcement (emphasis on some, we didn’t say “all”). We have relayed ridiculous things from law enforcement in the past, and this is a prime opportunity. The odds are spectacular that you will hear what a terrible idea this app is. How detrimental it will be to effective and efficient policing. How police, still inexplicably, cannot do their jobs while being watched. Even more odd will be the claim that police cannot do their jobs when it is possible they could be recorded, even without any actual recording.
As the courts are recognizing, recording police goes a long way to holding the state accountable for the use of the immense power it wields. It has helped spawn movements and has fueled others. Recording state actors carrying out their duty in public is likely your constitutional right; but don’t rely on this, it’s a blog post. If you are retaliated against for recording police, including being charged with an obstruction offense, give us a call, we may be headed to the Supreme Court with you.