When hip-hop star Dr. Dre began arguing with police officers outside one of his Detroit-area concerts in 2001 — after the police threatened to close the venue if Dre and other concert promoters displayed a sexually explicit film montage on stage — his concern was likely more about the quality of the concert than the video one of his associates was making of the confrontation. But after that video appeared on the concert’s DVD release, the police officers brought a civil suit against Dre on the grounds that taking the video without their permission constituted a violation of Michigan’s eavesdropping statute. The Michigan statute, like California’s and the statutes of 10 other states, requires two-party consent to record a “private conversation,” and the police officers claimed they were protected by the law even while performing their official duties.
While the Michigan Supreme Court eventually dismissed the suit because it found a number of people were present during the recording and so the conversation was not “private” as the statute requires, the court left open the question whether the police officers could have claimed the statute’s protection if the conversation had taken place in a closed office, at a roadside traffic stop, or in another similarly secluded location. That is not an idle question: In the past five years, arrests for recording police officers without consent have surged to coincide with the growing ubiquity of video cameras in cellphones. Individuals in California, Michigan, Maryland, Florida, Oregon, Pennsylvania, Massachusetts and Illinois have been arrested, and in many cases prosecuted, under state eavesdropping laws for no crime other than recording a police officer acting in his or her official capacity without the officer’s permission, sometimes exposing police corruption and abuse in the process.
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