Your Right to Take Video and Photographs

Every week, a recorded violent encounter with law enforcement reveals how important is can be to have photos and video evidence. This recent incident involving a traffic stop with a Jacksonville woman is a great example. Taking photographs and videos of things that are plainly visible from public spaces is constitutionally protected activity. This includes police and other governmental officials carrying out their duties. The law is a bit more nuanced when it comes to private home cameras that may be pointed at your neighbors property. Here are a few key tips to know about your rights relating to photos and videos.

Video in Outdoor Public Spaces

When you are in outdoor spaces where you are legally present, you have the right to capture any image that is in plain view. Unfortunately, law enforcement officers sometimes order people to stop taking photographs or video in public places, and sometimes harass, detain or even arrest people who use their cameras or cell phone recording devices in public.

• Generally, police should not order you to stop taking pictures or video.

• Police may order you to cease activities that are truly interfering with legitimate law enforcement operations. In the event of a dispute, the courts will generally give the officers the benefit of the doubt. So if you’re asked to stand back, we encourage you to do so. It is better to back up or put the camera away than risk being arrested.

• Under no circumstance should law enforcement demand that you delete your already-recorded video or photos.

• It is possible that courts may approve the seizure of a camera or phone in some circumstances if police have a reasonable, good-faith belief that it contains evidence of a crime by someone other than the police themselves.

• In Pennsylvania, the police cannot view the contents of your phone without a warrant. This is true even if you do not have your phone protected by a passcode, pattern lock, fingerprint, or facial recognition. In the 2018 case of Commonwealth v. Fulton, the Pennsylvania Supreme Court ruled that any means of access to cell phone data by law enforcement without a warrant violates the owner’s Fourth Amendment rights. Never consent to a police officer accessing and searching your phone.

Recording Audio and Video (Including Cell Phones)

You have a right to capture images but you do not always have the right to record what people are saying. Pennsylvania's Wiretap Law makes it illegal to record private conversations - which can include conversations in public places - without the consent of all parties to the conversation. Never record a telephone conversation without the permission of all persons to the conversation. Conversations with police in the course of their duties are not private conversations, but many other things you may record on a public street are.

• You can record video and audio of police officers performing official duties in public. You can record police at a traffic stop, during an arrest and an interrogation.

• You can record people protesting or giving speeches in public.

Video and Audio in Non-Public Setting

Whether you’re trying to protect your home, look out for all of your online deliveries or make sure your dog isn’t getting into the trash, there are a million reasons why home security cameras are growing in popularity. At the same time, you may be unnerved to know that so many of your neighbors might have their cameras trained on your home.

This is an area of law that is rapidly changing. Although the laws aren’t overly explicit and vary by state, here are some rules of the road that should keep you out of trouble.

Public vs. Private Property

If you are not on public property and are on private property, it’s generally not legal to record video, or else you must abide by the property owner’s rules for video recording. When you are on private property, the property owner sets the rules about the taking of photographs or videos. If you disobey property owners' rules, they can order you off their property (and have you arrested for trespassing if you do not comply).

Expectation of Privacy

Generally, it’s legal to record video in public. That goes for your everyday doorbell cameras, security cameras, etc. The only caveat is that anyone on camera should not have a reasonable expectation of privacy. A reasonable expectation of privacy means that places assumed to be private like bathrooms, changing rooms, locker rooms, hotel rooms, and bedrooms, are generally off limits. Now of course if it is your bedroom in your house, you should have no legal problem, but if you want to stay out of trouble, your best bet is to keep the cameras out of the bedrooms, etc.

Where Can You Point Your Outdoor Cameras?

Outdoor cameras, including video doorbells, can reasonably be stationed around your property, provided they don’t point directly into a room or space that a neighbor would consider private. Rather, cameras are allowed to point from your front door at the street, front lawn, or your own back door, etc., but as soon as you can see into a neighbor’s house, that’s when things get a little dicey. The best course of action is to keep those digital eyes focused on your own property and/or public property.

Nanny-Cams

In Pennsylvania, it’s legal to set up a hidden nanny cam in your house. You live there, and you have a right to know what’s going on inside those walls when you’re not there. In fact, hiding a nanny cam is legal in every state in the country. Be careful about recording audio. Recording someone else’s voice without their consent in Pennsylvania is against the law. So, if your nanny cam is recording (or streaming) sounds while you’re away, you better let your babysitter know. Even better would be to post a notice concerning the presence of the cameras and that they are recording sounds.

Beware of Camera Hackers

While you can use a hidden recording device in your home, it’s important to understand that a wireless – or WIFI – version might be risky. While the wireless camera can let you live-stream what’s going on while you’re away, it’s also susceptible to hacking.

Many homeowners have discovered that efforts to protect their kids with nanny cams have backfired – resulting in footage of their children posted online. This doesn’t mean your camera will be hacked or that your home (and kids) will be live-streamed on the internet. However, there’s always a chance. Use a password-protected network. Change your password frequently. Don’t give the babysitter access to that network unless you trust them and know them well.