Depends on who you talk to.
In Blown to Bits, we talk about citizen vigilantism—people taking vengeance on people they see doing bad things, or just snapping pictures of crimes being committed, pictures that may help identify the culprits. The digital explosion has engendered a lot more of this, for both better and worse—we once did not all have cameras on us all the time.
Of course, a technology generation later, we all have not just still cameras, but audio recorders and video cameras too—in cell phones and even iPods. And people are whipping them out when they observe arrests being made, and are using the recordings to embarrass the the police, or to help in the defense of the party being arrested.
Except now, as the Boston Globe reports, the police are increasingly fighting back, accusing those making the recordings of illegal surveillance, under wiretapping statutes. It’s a fascinating story. Some of the convictions are standing up in Massachusetts—the Supreme Judicial Court ruled in a split decision that the wiretapping statutes apply, unless the recording was made in a public manner. So people hiding the microphone in their sleeve or the camera in their coat may well be in trouble. Chief Justice Margaret Marshall was in the minority, opining
Citizens have a particularly important role to play when the official conduct at issue is that of the police. Their role cannot be performed if citizens must fear criminal reprisals when they seek to hold government officials responsible by recording, secretly recording on occasion, an interaction between a citizen and a police officer.
I don’t envy the police their job. Hell, I wouldn’t be happy if people were video-recording my every movement while I was doing my job. But what the police are doing while making an arrest seems to me a public act by definition. In other situations (all those traffic-stop videos we see) the police themselves make sure everything is recorded these days. Can’t see why recording the police arresting someone in the public square wouldn’t fall within citizens’ rights.