We all have a very powerful high-resolution camera in our pockets everywhere we go. Whether you have a phone known for its amazing camera or a trusty budget phone, the camera in your pocket is going to take great photos and videos when you use it. Tech is cool like that and average things today were incredible just a few years ago.
Do we really know how to use that camera? I don't mean knowing what all the settings and buttons can do; I mean having a handle on where and when we can film without any repercussions. I thought I did, but I had a lot to learn, and I recently learned more about public photography and privacy in one day than in 15 years of covering tech.
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You might have seen videos from "First Amendment Auditors" on YouTube or TikTok — I spent an uncomfortable day at the post office with a group of them.
If you're not familiar with the term, First Amendment Auditors use their camera to exercise their First Amendment rights by taking video in public spaces like sidewalks, post offices, or other government spaces. I won't say anything about any agenda they may have because they each have their platform to explain themselves. I will say that they are very knowledgeable of the laws surrounding public photography, and most of us have a lot to learn about the whole mess they create. Some of them, like one of the people at this particular outing, are also in law school and know exactly what they can and can't do.
I was there just to observe because I was curious. I parked myself off to the side without my phone camera in my hands to see how people reacted to what surely felt like an invasion of their privacy. What I learned is that the rules and laws can confuse us because there's a difference between what is legal and what is right.
The nuances of filming in public
This article is going to be about rules and laws in the United States. Nothing here applies anywhere else, and if you're curious about filming in your country, I recommend you find a similar article written by someone more local with more knowledge.
In general, in the United States, if I am in a place I am allowed to be and can see it with my eyes, I can also photograph it. This is covered under the First Amendment of the U.S. Constitution:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
The freedom of the press portion is why this applies to people with cameras at the Post office. There is no such thing as a press pass under the law; we are all journalists with the ability and right to gather and distribute information and the powerful camera in our phone makes it easy to do. It's a good thing, and like all good things is easy to abuse.
The confusion comes from our perceptions of privacy. When out in public, you have zero reasonable expectations of privacy. That means people will see you, will see what you are doing, and will film you doing it if they desire.
You are filmed every day you leave your house. Consumer products like video doorbells and security cameras are filming you, cameras are mounted on the outside of the grocery store or the gas station, and even cars film you as they drive by. Cameras are also inside the places you visit and in some states can also record audio.
First Amendment Auditors often remind you of this and tell you that you have no right to privacy. They're correct — the Bill of Rights offers us privacy protections from the government (the Fourth and Fifth Amendments) but not from ourselves. You might hate this — I do — but feelings aren't laws. If we had a right to privacy and filming us required some sort of permission or a signed release, Elon Musk would be in jail.
As I mentioned, there are nuances to public filming laws. In some cases, intent matters; if you take creepy shots of underage girls and then post them to the internet, you probably will get in trouble (thankfully) because of your intent. But if you take photos and videos of underage girls sitting on a bench and share them as news with no ill intent, you're not breaking the law. Wiretapping laws and things like two-party consent can also matter for filming inside businesses, even if it's the business owner doing the filming.
In the U.S., states can afford us more rights than the Constitution provides, and things like using a long pole to film over a fence or flying a drone into someone's backyard can be illegal. Unless you're afforded these special rights by the state, it's really trivial to film you almost anywhere.
First Amendment Auditors know about these nuances and take the time to learn the laws before they go somewhere to practice their rights. If there is any question about the law, an attorney will be promptly consulted. I'm sure what they are doing is lucrative and profitable, so it's worth the costs to push the envelope.
I'm going to assume that most of us aren't really interested in traveling the U.S. to film post offices or the DMV and just want to use our cameras to take great pics and videos of the things around us. We still need to understand where and when we can do it.
That gets a little dicey when it comes to those odd encounters that can happen. If we see people in conflict situations or polar bears chasing penguins, we naturally want to film it. We're wired that way and people love a spectacle. It's why entities like TMZ exist.
You should definitely know the exact laws about photography in the location where you want to use a camera, but some general rules are easy to remember and usually apply.
Defining "public" and "intent" can be tricky
Public means a few different things. Some places, like the sidewalk, are public. You can be there, and you can film anything your eyes (or a telephoto lens) can see. Other places, like government buildings, have publicly accessible spaces like lobbies where you can film, and other places aren't publicly accessible.
Things can be interesting when public and private intersect. Walmart is a private business that is open to the public. You're not breaking any laws if you film someone acting a fool in Walmart, but Walmart can ask you to stop, just like you can say no because using your camera is not against the law, just Walmart's policy. In turn, Walmart can ask you to leave their private business, and if you don't, law enforcement will become involved in escorting you out and serving you with a trespass notice.
Intent is a complicated concept that usually requires a judge or jury to decide. I have a real-life example where intent decided the outcome. At a music festival, I noticed a man using his phone to film a friend breastfeeding her child. I confronted him, lost my temper, and knocked his phone out of his hand, damaging it.
I was cited for assault and battery, and he was cited for harassment. County attorneys declined to file charges against me, but I was forced to reimburse him for his damaged property. No charges were filed against him because breastfeeding is a "natural and wholesome activity" (I agree), and ill intent could not be proven. Taking photos of women at the beach, little kids at the playground, or a mother breastfeeding her child is not illegal unless the photos or video are used in a "bad" way.
I'd do it again, but I would know I was in the wrong for doing it unless I could prove he had bad intentions.
What can you do if you're being filmed?
Another thing to consider is what you can do if you're the one being filmed. You may have no right to privacy but you have the right to try and create it. That means stupid things like never leaving your house or wearing a disguise while out in public, but it also means being aware of your surroundings and taking precautions.
It is legal for me to take a video of you entering your PIN at an ATM as long as I am where I am allowed to be. Doing something illegal with that information is different than witnessing it. This sucks because it shouldn't be legal, but it is. This also applies to someone getting in close to see what's on your phone's screen while you're using it to put in your password somewhere or if you're messaging someone. Keep this in mind and protect your privacy in case someone is invading it. Those privacy screen protectors can help, but being aware of what's around you is the best way to safeguard your privacy.
You also need to know that in many places, you can not interfere with someone "exercising their First Amendment rights" by filming. Harassing them or otherwise impeding their filming can get you a charge. As much as you might hate this idea — I certainly do — a person with a camera has the same rights afforded to them as you do.
You also do not have to sign any form of release for someone to take photos or video of you unless it's being used for commercial purposes. That means I do need your permission to use you in a commercial or to endorse a product on TikTok. I do not need your permission to post monetized videos on social platforms if you're in them.
The most important thing is to be respectful to each other. You can't stop me from filming you while you're at the post office or sitting at a sidewalk table eating lunch. The best thing that could happen is for me to be respectful and to stop filming you. The next best thing is for you to ignore me or to leave without causing a problem. It's tempting to yell at or do something even worse, but it's unwise — it could lead to legal troubles or just make you look unhinged on social media.
It might sound like I hate those guys at the post office taking videos of everyone, but I don't. I love what they have the right to do, but I dislike the way they go about doing it. I also understand that rights can be uncomfortable, and while I wasn't taking videos or spouting off laws and Constitutional Amendments, nobody wanted to see me in the corner associating with "those guys," and I felt bad doing it.
Knowing "the rules" when it comes to using your phone's camera is important. You should be able to film important things, and you get to decide what is important to you. You also don't want to end up in the back of a patrol car because you weren't aware of the laws themselves.
But maybe we should also consider how others feel when it comes to whipping out your camera.
