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BY Nick Judd | Wednesday, October 10 2012



Courts have repeatedly upheld the right of people in public to photograph without their subjects' permission. In New York City, where some of the most heated confrontations have taken place over who has the right to record, that even extends to the subways — although reports are common of police challenging people who exercise that right. And as digital cameras proliferate, the right to record public events has continued to spread in social mores if not in law. You don't have to spend long on YouTube or Instagram to see that every day, people ratify a social contract that extends the right to record off the streets and into any large gathering.


While the host of any private gathering has long been able to decide who does and doesn't get to record what happens there, explicit restrictions on the right to record at political functions are entirely new.

Mitt Romney was caught on camera in May suggesting 47 percent of voters "believe that they are victims." The Chicago Sun-Times reported Monday that audio and video recordings are now banned from fundraisers featuring the Republican presidential nominee. Barack Obama learned this lesson in 2008, when citizen journalist Mayhill Fowler published a recording in which he said some Pennsylvanians "get bitter, they cling to guns or religion or antipathy to people who aren't like them or anti-immigrant sentiment or anti-trade sentiment as a way to explain their frustrations."

The president's campaign staff have been confiscating phones at fundraisers as a routine practice for some time now.

As political observers scramble to identify which technologies are the most effective ones in politics, these moves say a lot about the power of two simple, widely available tools: The cellphone camera and the person-to-person connection on a social network to share what it records. It's become so easy and commonplace to punish someone for fibbing or brazenly refusing to own a prior public statement the done thing this year seems to be to say as little in public as possible.

Police are also struggling with the suddenly increased significance of the ability to record in public space. There's an ongoing skirmish, literally a street fight, under way over who gets to have proof of what really happens when civilians encounter the police. It is the same fight as the one over the ability to create a public record that hold politicians accountable for what they say on the campaign trail, says Josh Stearns, a researcher and advocate with the organization Free Press.

"When you talk about why this really matters," Stearns says, "it's access to information, and the question of who controls the narrative."

Stearns' most notable work in the past year has been to monitor the arrests of journalists by police during Occupy actions and other political protests around the country. He agrees that there is a parallel to be drawn between the efforts of political powers-that-be to control a campaign message in this everyone's-a-journalist era and the tension between the need of police officers to keep the peace with the right of citizens to record what happens in public space.

"There is this imbalance of the official story versus the journalist or citizen story," Stearns said, "and the willingness of officials to expand the use of their own cameras while also clamping down on journalists."

To be fair to police, Stearns said, there's also the tension that comes from some newly empowered videographers getting their lenses too close to peace officers who are trying to do their jobs.

In politics, the shifting of the scales in favor of the individual with the camera can upset the course of a campaign by catching a candidate saying one thing in private and another in public. In the street, it has exonerated at least one person accused of disorderly conduct and fanned the flames surrounding New York City's controversial stop-and-frisk policy, under which officers affect seemingly random stops that opponents say are racially motivated, focused on the city's lower-income areas and are not proven to reduce crime.

The power of citizen video has tossed out at least one spurious arrest. Alex Arbuckle, at the time a 21-year-old New York University student, was photographing police during an Occupy demonstration on New Year's Eve when he was arrested and charged with two counts of disorderly conduct.

He told the New York Times that he was walking calmly on the sidewalk at the time, hardly congruent with the charges he faced for allegedly disobeying a police order to disperse and obstructing traffic. Citizen videojournalist Tim Pool recorded the entire encounter. When Pool's footage was played in court, it did as much to the charges against Arbuckle as the footage from Romney's fundraiser did to change the conversation about his campaign. All charges against Arbuckle were dropped.

It's an example of what the ability to immediately record does to situations in which what an authority figure says happened used to matter more than what really did happen.

"I'm really proud of that, I guess because one of the reasons I do what I do is sort of -- I try to be able to show people a clear sequence of events," Pool told me when I spoke with him about the incident by phone this summer. "By filming, you can't argue later."

Pool said he's stopped trying to get a statement from police about situations like these. NYPD spokesman Paul Browne, Pool alleged, "will lie left and right."

This is, in effect, the same suggestion made in The Nation recently with an audio clip said to be a surreptitiously recorded encounter between a Harlem teenager and police. In the clip, part of an upcoming documentary, one officer tells the teen he's being stopped and detained because he was a "mutt." He was shoved, he says, and his arm twisted behind his back, by officers who also threatened to break his arm:

Top New York officials deny that street stops under stop-and-frisk are racially motivated and say it's a valuable crime-fighting tool.

The NYPD did not immediately respond to a Daily News request for comment about this latest story, and have yet to respond to an inquiry I placed earlier this afternoon, either.

That case brings us all the way back to politics — to control of the narrative, to who is credible and who is not, and to how all efforts to control the chain of evidence share a common thread.

Earlier this summer, I asked Pool about that connection, and about covering politics versus covering street protests. That's when he expressed some of his frustration with trying to get a straight answer from people in power.

"My whole life I've been following politics and activism," he said. "I don't think there is a truth. There's always people trying to control what the truth is because everyone has a different point of view. And everyone has subjective morals."

After all, even if Pool was there on the ground, who will people believe — a former skateboarder turned pro-am videojockey, or a veteran spokesman for one of the largest police departments in the world?

"It's just about, do you trust this person who's speaking?" Pool said. "It's really difficult. And that's why I do video, and photos.

"Here's a video," he explained. "Don't take my word for it."

Update: It's possible the war-on-cameras, so to speak, is extending inside phones themselves. A new Apple patent could disable cellphone cameras remotely, in a theater, for example, to fight piracy. But as Pool explained in a YouTube video, the patent also includes language that suggests law enforcement hoping to operate in secrecy could turn off phones in a particular area: