We received the following question via e-mail and thought it would be useful to post our reply in the forum:
In the state of NY, can I record video with audio of anyone in public, specifically police officers or other goverment officials? Do I need their consent? Is it a violation of my civil rights if an officer tells me or forces me under threat of arrest to turn off my recording device?
There is no New York statute that creates a general ban on recording in public areas. However, when recording audio, it is important to avoid violations of N.Y. Penal Law § 250 et seq., New York's Wiretapping Act. Wiretapping, under the Act, is defined to include the intentional interception of a conversation on a cellular telephone by means of a mechanical device by which it is possible to overhear the conversation. Thus, it is possible to violate the Wiretapping Act (and thereby commit a felony) by pointing a camera at a person speaking on a cell phone and creating an audio recording of part of the telephone conversation. However, New York permits the recording of telephone communications with the consent of one party to the conversation, and so it is permissible to create such a recording if the person being filmed consents.
Just because a camera is located in a public place does not mean that the subject being recorded is in a public place as well. Most states recognize that the use of a telescopic lens or enhanced audio recording equipment from a public location can violate privacy rights, if used to see or to listen to activity in places that could not be seen or overheard without mechanical assistance.
The CMLP has advocated for the recognition of a constitutional right to record the actions of government officials in public spaces where there is no legitimate expectation of privacy. The U.S. Supreme Court has not ruled on this issue, but certain federal Courts of Appeals have recognized a First Amendment right to record matters of public interest and/or government or police activity in public areas, subject to reasonable time, place and manner restrictions. Some courts have expressed doubt as to whether such a First Amendment right would extend to inherently dangerous circumstances where the presence of a person recording is likely pose a risk of harm to police officers, suspects or members of the public. Currently, we are not aware of any decision from a state or federal court in New York that addresses this question; therefore, it is possible that a court in New York might disagree with those courts recognizing a First Amendment right.