Police Use HIPAA To Justify Charging Citizen For Recording Them

from the well-that's-just-bullshit dept

Thu, Jan 10th 2013 9:17am — Timothy Geigner

At some point, some national group is going to have to get the memo out to local law enforcement agencies within the United States that it is perfectly legal to record them while they operate in public. We've seen case after case after case of citizens having their property taken away or being charged with trumped up crimes all because they pointed a recording device at the police. Hell, some states have tried to enact unconstitutional laws to back up their ill-conceived and unwarranted positions.

All that being said, you just have to hand it to a police force up in Minnesota for the sheer cajones it took to do what they did. It started as other stories have, with a citizen, Andrew Henderson, recording police as they frisked a bloodied man before he was loaded into an ambulance and then having an officer take his recording device away.

The deputy, Jacqueline Muellner, approached him and snatched the camera from his hand, Henderson said.

"We'll just take this for evidence," Muellner said. Their voices were recorded on Henderson's cellphone as they spoke, and Henderson provided a copy of the audio file to the Pioneer Press. "If I end up on YouTube, I'm gonna be upset."

We've seen this kind of thing before, of course. Police use the excuse of evidence collecting to take away recording devices, which is really the only thing they're interested in. It's wrong. We get that. Usually some kind of internal review of the incident is triggered, asses are officially covered, and then the recording device is returned, sometimes after having been wiped. It's a bad enough story as it stands.

And that scenario is almost exactly what happened here, as the spokesman for Ramsey County acknowledged in a quote that citizens have the right to record police. But everyday abusive practices aren't enough for Ramsey County officers, apparently. The only thing that will satisfy them appears to be a new level of bullshit hitherto unseen, because a week later, when Henderson went to retrieve the camera, the police charged him with disorderly conduct and obstruction, with the citation noting that this was due to a "Data privacy HIPAA violation." In case you aren't clear on this, in the blogging industry, we refer to this as a massive amount of bullshit (piles and piles of it).

The allegation that his recording of the incident violated HIPAA, or the federal Health Insurance Portability and Accountability Act, is nonsense, said Jennifer Granick, a specialist on privacy issues at Stanford University Law School. The rule deals with how health care providers handle consumers' health information.

"There's nothing in HIPAA that prevents someone who's not subject to HIPAA from taking photographs on the public streets," Granick said. "HIPAA has absolutely nothing to say about that."

The kicker? The deputy who had taken the camera for "evidence" purposes erased all the footage. The exchange in which she took that camera was audio recorded by Henderson separately on his cell phone, a recording which he still has. I would suggest that if the police do not immediately rescind their trumped up charges against him, Henderson should insist that we take the deputy at her word, assume she collected the camera and its footage as evidence, and then we can all begin discussing how much prison time the deputy should be doing for destruction of evidence and obstruction of justice.

That's no more crazy than anything the police have done in this story.

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Filed Under: hipaa, overreaction, police, ramsey county, recording

53 Comments

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Ninja (profile), 10 Jan 2013 @ 8:47am

That's no more crazy than anything the police have done in this story.

Do NOT underestimate law enforcement in the US. Actually, do not underestimate law enforcement anywhere in the world.
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pixelpusher220 (profile), 10 Jan 2013 @ 9:23am

Prison time
You mean the amount of prison time the CIA got for deleting torture videos in direct opposition to a Judge's order? sigh...wishful thinking though
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silverscarcat (profile), 10 Jan 2013 @ 9:26am

The sad thing is...
To be a police officer, your IQ has to be between 95 and 105. Smart enough to follow orders, not smart enough to think for yourself.

After all, you can be too smart to be a police officer...

Which would be most 5th graders right now.
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SEHumphrey, 10 Jan 2013 @ 9:31am

Link wrong
The link in the 2nd paragraph is a link to another techdirt article (already cited in the first paragraph) when it is probably supposed to be to this news article: http://www.twincities.com/localnews/ci_22333563/little-canada-man-videotaped-sheriffs-deputies-and-g ot
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Anonymous Coward, 10 Jan 2013 @ 9:32am

If they were doing their job right there would be no concern of whether they were going to end up on YouTube or not. If there is something to hide you're most likely fucking up.
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Adrian Lopez, 10 Jan 2013 @ 9:38am

Upload it!
The world needs an app that will upload video to a secure, write-only online storage space as it's being recorded. That way if corrupt police officers decide to confiscate a device and delete its contents, the video will still be available online and everybody will know exactly what they deleted and why.
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Michael, 10 Jan 2013 @ 9:44am

Deleting the recordings
How is this any different than the police walking onto a movie studio lot and removing the film from a camera? I cannot think of ANY instance in which the police would have the right to delete a recording made by someone else.

If the recording is itself illegal, it is evidence. If the recording is not illegal, IT IS NOT ILLEGAL.

It is so painful to see stories like this. How arrogant have some of the police officers in the US gotten? The police do not have the right to destroy anything unless they are ordered to by the courts.

I am sure it is very intimidating being on the receiving end of something like this, but I hope this guy brings a civil suit against them for their behavior. If nothing else, the citizens in this area should be up in arms over this and complaining very loudly to local government officials.
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Andrew Norton (profile), 10 Jan 2013 @ 9:46am

Some solutions
This is why earlier this week, I released some suggestions on actions that police (and politicians) can undertake to deal with issues like this

http://falkvinge.net/2013/01/08/how-the-police-and-politicians-can-regain-the-public-trust/

Won't happen though, and we all know it.
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Anonymous Coward, 10 Jan 2013 @ 9:48am

Copyright violation detected!
Maybe they should sue for violating the copyright of the video. That should be good for $150,000 in statutory damages as well as get the FBI to investigate the police department's destruction of copyrighted content.
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Anonymous Coward, 10 Jan 2013 @ 9:51am

http://www.hiddencameraglasses.com/?gs-50off&gclid=CL2J_Kus3rQCFc2R3godwU0AJA

Connect a video recording glass to a Android.

I am sure it can be done via USB or Bluetooth.

The Android part is to automagically upload the video to the cloud or Youtube.
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Anonymous Coward, 10 Jan 2013 @ 9:52am

Henderson should insist that we take the deputy at her word, assume she collected the camera and its footage as evidence, and then we can all begin discussing how much prison time the deputy should be doing for destruction of evidence and obstruction of justice.

Well, prison time for cops is generally eschewed in favor of paid administrative leave, but damn right that's what should happen.
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Michael, 10 Jan 2013 @ 9:55am

HIPAA
I spent about a decade working for disability insurance companies that were subject to HIPAA. I had to take HIPAA classes and we had regular audits. The guidelines are pretty strict about how to handle information about people's medical and insurance information.

Something just occurred to me...

We would regularly have investigators check on people that we thought were not being totally honest about their injuries and inability to go back to work. The investigators would take videos of people with "serious back injuries" carrying 4 bags of groceries and kicking their trunk lid closed or something. These videos were specifically exempt from the HIPAA regulations because they were taken in public and didn't need to be stored and handled in the way medical files were cared for.
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PlagueSD (profile), 10 Jan 2013 @ 9:57am

Re: Upload it!
There's already an app out there for Android devices. ACLU-NJ Police Tape available at

http://www.aclu-nj.org/
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George Zimmer (profile), 10 Jan 2013 @ 9:58am

Hi Tim, I'm George Zimmer, founder and CEO of Men's Wearhouse.

This cellphone recording is definitely bothersome. Why, just the other day I was pulled over for speeding by a lascivious lady officer.

As she was writing my ticket, I offered her a chance to experience the concussion inducing throwback of my white volcano on the grounds she allow me to record it and share the Spankwire profits.

Unfortunately, she took it as a threat to her life and attempted to blind me with mace. The situation worsened as while I was stumbling about, the sway of my angelic hips loosed the voluminous meat trunk from my Kenneth Cole Straight Jeans and into an arc beautiful enough to make Euclid poop his pants, the result however was construed as assault on an officer and I was taken into custody.

When I got my cellphone back, the video had been deleted along with numerous pictures of my photoshopped next to Ryan Gosling.
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Bill Silverstein (profile), 10 Jan 2013 @ 10:00am

The police deleting the video may help
In California (and probably many other jurisdictions) there is provisions in the law which allows a party to establish a negative inference when evidence is destroyed or concealed.

Also, the ACLU has produced a PoliceTape application which automatically uploads the video to the ACLU server.
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Anonymous Coward, 10 Jan 2013 @ 10:05am

Re: Upload it!
Use a bluetooth or WiFi link to a second device in a pocket or bag. This way you aren't consuming mobile bandwidth, or dependent on local WiFi.
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aldestrawk (profile), 10 Jan 2013 @ 10:08am

HIPAA violation not actually one of the charges
Although the HIPAA violation is noted in the citation the policewoman handed out Henderson was actually charged with just "obstruction of legal process and disorderly conduct, both misdemeanors". This is enough bullshit on it's own but it looks like the law firm that handles the misdemeanor prosecutions in that county decided the HIPAA violation was just too much bullshit.

In the article, the police claim they didn't delete the video. I am not specifically familiar with digital cam filesystems but if it is close to typical computer filesystems then deletion means just deleting the directory entry. In fact, the directory entry may still be there, and with a timestamp, but just marked as being invalid. It is possible that Henderson could recover the file, but he should try to do this before using the camera further. If he used a computer forensics expert to do this the recovered file could be more convincingly used as evidence in court. If during trial the policewoman testified under oath that she did not delete the video and then evidence was presented that the video was actually deleted, well, that would be perjury proven.
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SJ, 10 Jan 2013 @ 10:09am

Re: Upload it!
Have you tried OpenWatch?

http://www.movements.org/how-to/entry/how-to-use-openwatch-to-capture-audio-and-video- covertly/
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Chosen Reject (profile), 10 Jan 2013 @ 10:13am

Re: Upload it!
I get what you're saying, but what good is a write-only online storage space? So you've written it. Now you can't see it, but you can delete it.
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Lord Binky, 10 Jan 2013 @ 10:15am

Re: HIPAA violation not actually one of the charges
Unless of course her buddy deleted it.
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Michael, 10 Jan 2013 @ 10:23am

Re: HIPAA violation not actually one of the charges
When did the definition of "disorderly conduct" become "anything the police don't like"?
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Anonymous Coward, 10 Jan 2013 @ 10:24am

Re: Re: Upload it!
Thank you pedantic man, you have saved the village!
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Adrian Lopez, 10 Jan 2013 @ 10:29am

Re: Re: Upload it!
I'm thinking along the lines of being able to write new videos but not being able to read or delete them without going through a separate authentication mechanism. I certainly didn't mean "write only" in the sense of never being able to read what's been written. Perhaps I should have said "write once, publish later" instead of "write only".
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NAProtector, 10 Jan 2013 @ 10:40am

I find that this
is a good since of irony in the whole concept. They want to monitor us. Virtually put a tag, leash, and camera on everyone and make sure that we are not breaking the law. We should not complain because, 'you don't have anything to hide', right?

Yet, if we ask the same to be done to politicians, police, government, and etc; they respond with there is a law against it, it interferes with the process, the public doesn't need to know, national security, and etc.

It is always easier to monitor people that follow the law than those that do not.
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Anonymous Coward, 10 Jan 2013 @ 10:46am

We live in a police state, this along with selective law enforcement and the desire of the authorities desire to disarm law abiding citizens is proof enough.
The statists will not be happy until everyone lives under their collectivist boot.
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Overcast (profile), 10 Jan 2013 @ 10:47am

They can come up with all the BS in the world - but the police are the ones breaking the law here.

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized"

And as we see - without the 'rule of law' - corruption begins to overwhelm the system.

So yeah, you 'law enforcement' lackeys - do what you will, but realize you are *just as guilty* of breaking laws as those you are jailing. You just have a badge to 'say' you are one of the 'good guys'.

When our society is so ripe with corruption that it can no longer function properly - pat yourself on the back; for a job well done - killing liberty.
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aldestrawk (profile), 10 Jan 2013 @ 10:48am

Re: Re: HIPAA violation not actually one of the charges
Since the cam was taken as evidence, there must be tracking showing all who were in possession of it. The video itself is certainly evidence pertaining to the two charges Henderson has been accused of. One, of at most a handful, of law enforcement officers who handled the camera had to have deleted the video and thus deleted evidence that would have been useful in the trial. The police here have put themselves in a bad situation and I'll bet charges will be dropped before a trial occurs. Recovery of the deleted video would help Henderson's case tremendously.
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Anonymous Coward, 10 Jan 2013 @ 10:56am

Re: Re: HIPAA violation not actually one of the charges
Actually that's always been the definition... some cops are just more reasonable about than others...
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EGN, 10 Jan 2013 @ 11:02am

Re: The sad thing is...
Not with the current state of our education system. I'm afraid it's either Walmart of Police Academy for the lot of them.
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Anonymous Coward, 10 Jan 2013 @ 11:05am

Undelete
Stick it through a file recovery program ASAP. This is despicable - oh and sue the pants off 'em!
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Anonymous Coward, 10 Jan 2013 @ 11:14am

And what makes this case even worse is that he wasn't arrested on the spot by an officer who may have simply been ignorant of the law (which would be bad enough.) Instead, he is charged a week later, after everyone had time to actually look up the law if they cared to.

"I would suggest that if the police do not immediately rescind their trumped up charges against him, Henderson should insist that we take the deputy at her word, assume she collected the camera and its footage as evidence, and then we can all begin discussing how much prison time the deputy should be doing for destruction of evidence and obstruction of justice."

I would suggest he do that ANYWAY. If the deputy's taking of the camera was illegal, then the footage on the camera is evidence pertaining to THAT crime. And even if no other crime is found to have been committed, the deletion itself is still some form of destruction of property. You can't just go around taking people's cameras and deleting what's on them.
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Thomas (profile), 10 Jan 2013 @ 11:17am

Just goes to show..
that cops don't want people to know about the beatings that ordinary people get when they annoy an officer. Cops always say "If you have nothing to hide you have nothing to worry about", BUT when it's the other way around it is a very different story. Too many cops think they are above the law and beating the crap out of innocent people is just a perk of the job.

Heck, Boton lost a big lawsuit about recording, BUT they still harras and arrest people for taking videos of the cops.
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weneedhelp (profile), 10 Jan 2013 @ 11:26am

Re: Re: HIPAA violation not actually one of the charges
You must be new. Welcome to America.

Disorderly conduct is a free pass to fish for other shit.
Anything (sitting quietly on the hood of your car) can be disorderly.

DC is used when the cop just wants to harass you and has nothing else.

Here is what the lovely Camden NJ police like to do:
http://www.aclu-nj.org/news/2013/01/10/camden-agrees-pay-35m

Cops are crooks.
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dante866 (profile), 10 Jan 2013 @ 11:35am

Re: Re: The sad thing is...
I can't determine if Walmart or Police Academy are better than medical experiments for the lot of them...

No, no, I've made up my mind...it's medical experiments for the lot of ya...
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Kingster (profile), 10 Jan 2013 @ 11:49am

Interesting...
If she claimed HIPAA, then deleted the files, then she's put the department into regulatory purgatory. You're not supposed to delete those files, for a few years, anyway.
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Couldn'tCareLess, 10 Jan 2013 @ 11:53am

Undelete is EASY
Just run a data recovery on the phone or any digital media for that fact. It's fast, effective and can be posted in a heartbeat. Then essentially shoving it right up the pigs ass!
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Christopher (profile), 10 Jan 2013 @ 12:02pm

Re: The sad thing is...
The funniest things I've ever personally witnessed are the interactions between my stupid cop father and the high IQ public he would pull over. For some reason my 100 IQ dad thought blocking a crosswalk or speeding through intersections near schools was a problem. How stupid he is! Ha ha!

Comments like scat's make me root for the baton, not the recipient.

-C
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silverscarcat (profile), 10 Jan 2013 @ 12:17pm

Re: Re: The sad thing is...
Your sarcasm is duly noted and ignored.

And maybe your dad is pretty good, that's fine, but if you look into it a little bit, you'll find that people are rejected from being police officers because they're too smart.
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TK9K1, 10 Jan 2013 @ 12:42pm

Role of Police
The people's right to record police activities is going to be challenged. What we really need to look at is the core of the issue, which is the role of law enforcement in our country.

The job of a LEO is to put you in jail. We live in a society full of "don'ts", some serious, some petty. Don't jaywalk. Don't cross a double yellow. Don't do drugs. Don't lie, cheat, steal, or display advertising signage larger than 2'x3' within 6' of a public road. The LEOs have a lot of laws to contend with on their side, too. No coercion, mistreating a suspect, warrantless searches, unreasonable force, etc. The problem is we have so many rules on both sides of the divide that anything we can do is an obstruction of justice. You don't want to be convicted of a bogus crime, and the cops don't want some career criminal going free because they got videotaped mishandling some piece of evidence.

The real root of the problem here is that the job of police has gradually shifted away from 'to serve and protect' and to pure enforcement. Enforce the letter of the law regardless of the circumstances, fine people, put people in jail, and at the end of the day, have your performance rated by the number of people you've screwed over in the name of justice. Recording police activities is a threat to that modus operandi. The problem isn't the resistance to it, though, it's the MO in question.
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Information Warfare, 10 Jan 2013 @ 12:47pm

Just Make..
Sure you give all your firearms..
[ link to this | view in thread ]
Information Warfare, 10 Jan 2013 @ 12:47pm

Just Make..
Sure you give up all your firearms..
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Chronno S. Trigger (profile), 10 Jan 2013 @ 12:55pm

Re: Re: Re: Upload it!
FTB has separate security settings for things like read, write, change, and even delete. This is probably what you're talking about, something that only has the write security setting but doesn't have the read, change, or delete security.

Windows has all of these security settings as well (probably means that Linux and Mac do as well), but it's hard to implement.

I'm all for a video recording software that can do this, but I don't see the advantage of limiting the read option.
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Anonymous Coward, 10 Jan 2013 @ 1:08pm

The more they do these things, the more widespread it will become.

I cant fathom what they think would happen by snatching other peoples properties for no good reason, maybe, subjucation, if thats the case, i refer you to my first sentence......
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Adrian Lopez, 10 Jan 2013 @ 1:26pm

Re: Re: Re: Re: Upload it!
I'm arguing for "invisible" online storage: a person going through the phone's content wouldn't know which videos have been stored online and which have not, nor would they be able to go looking through videos not currently stored on the phone itself.
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Anonymous Coward, 10 Jan 2013 @ 1:50pm

Re: Re: HIPAA violation not actually one of the charges
About the same time it was put onto the books.
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Anonymous, 10 Jan 2013 @ 2:09pm

The list of reasons to get rid of government just keeps growing.
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Jesse (profile), 10 Jan 2013 @ 2:57pm

Re: Prison time
Use Qik video.

It uploads the video online the second you hit "stop."

Start recording. When the police officer walks over to you, hit the stop button and then lock the phone with the power button. They take the phone but you can access it at the Qik website, making as many copies as you please.
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Anonymous Coward, 10 Jan 2013 @ 3:24pm

No more recording! Send your video / pictures directly to the cloud. Nothing to confiscate!
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G Thompson (profile), 10 Jan 2013 @ 4:35pm

Re:
Do NOT underestimate the ineptitude, egotistic nature nor arrogance of law enforcement in the US. Actually, do not underestimate the ineptitude, egotistic nature nor arrogance of law enforcement anywhere in the world.

Fixed ;)
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G Thompson (profile), 10 Jan 2013 @ 4:40pm

Re: Deleting the recordings
Absolutely, it is either a destruction of evidence or a destruction of property problem for the officers.

Damned either way , In fact double damned if it's the property one since that can be actioned under both civil and criminal.

And AFAIK in the USA immunity is removed for both.
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Anonymous Coward, 10 Jan 2013 @ 5:35pm

You can buy sunglasses with a built-in video recorder.
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RyanNerd (profile), 11 Jan 2013 @ 5:08am

Re: Some solutions
Yep. You're right. Won't happen. Face it most of our "leaders" have been bought and sold by corperations and others with money for which they have bribed our public officals. We the people are no longer represented yet we are being taxed. We need another revolution before this will change.

Somehow I remember the cry of 'taxation without representation' being something morally wrong. But of course that was over 200 years ago so it is no longer in style.
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William Hayes, 14 Jan 2013 @ 1:00pm

Re: Upload it!
Newer Cameras will bluetooth to phone to allow a youtube upload. Expensive Cameras like the iPhone v5 will record straight to youtube. My iPhone records quite well. I've caught several people doing stupid stuff with my iPhone peeking through a hole in my Shirt's Pocket. The Fort Worth Courts have sent a lot of them to prison. Youtubers have gotten a kick from the videos.
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