If Police Want Your Cell Phone Video As Evidence, Can You Just Email the File to Them?

The New York Times has an interesting story on the police seizure of witnesses’ cell phones after the shooting of a knife-wielding man in Times Square on Saturday. I wrote about that issue a few weeks ago, and how the DC police department issued a first-of-its-kind policy on how officers should deal with evidence in citizens’ phones.

One of the innovative things about the DC policy is that it allows a citizen to email a relevant video or photograph to the police department. That provides a nice alternative to having the police seize the entire camera or phone and hold it as evidence for who knows how long.

The Times, however, quotes a legal expert as saying that police prefer to download data themselves out of fears that to do otherwise might raise questions about the chain of custody of the electronic evidence.

That seemed strange to me, since as we privacy advocates know all too well, electronic transmissions tend to leave behind very traceable trails—more so than offline transactions certainly. I asked my ACLU colleague Art Spitzer, who negotiated the DC policy as part of the settlement of an ACLU lawsuit, whether this chain of custody issue came up as they were hammering out that policy. Art told me:

Yes, it did. That's why the General Order says that a person whose smartphone has relevant photos or videos may, “in the presence of the member [meaning the police officer], voluntarily transmit the images or sound via text message or electronic mail to the member’s official government electronic mail account.” That way the officer can testify in court that she knows the images she received were transmitted from the camera that she didn't seize at the scene. The DC Metropolitan Police Department’s General Counsel and the DC Attorney General's office think this will provide an adequate chain of custody for legal purposes, and we think so too.

Clearly, maintaining a strong chain of custody is important both to protect the innocent from being falsely accused or convicted based on false evidence, and to enable prosecutors to convict the guilty based on good evidence. No doubt this procedure will be tested in the courts, where we hope it will be upheld, so that individuals can avoid having their phones seized, and be less subject to invasions of privacy by police officers who might be tempted to peruse the other contents of their device (which, as I discussed in my prior post, the DC policy prohibits, in addition to requiring a warrant to access any data on a device that is not voluntarily shared).

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Wait, did... logic just rule the day?
What universe am I in?


I'm all in favor of this idea. But would someone please make a "Call Me Maybe" spoof of this???


Suppose it isn't a cell phone camera. Can they seize any camera and/or its sd card for its digital evidence? What about traditional, film cameras?

Vicki B.

You have no IDEA just what these "professional" officers tell you they can DO to you when conducting an investigation. They even tell you that they "have the right to lie to you about the case when seeking a truth from you about it."

A "truth?" Truth as defined by WHOM? Their organization? IOW the homicide division of their department?
I didn't know that along with Congress on your Corner we'd added Criminal court proceedings on your Corner to it. They're judging and convicting us in the court of their minds if you ask me.
And then they wonder why no-freakin'-body wants to come forth with ANY evidence and even have the gall to stoop to manipulative phrases like "A person has died in this neighborhood and by not giving the police any information about it you're saying you don't care, and things like this will continue to happen here."

They're SUCH ninnies who make it obvious that their silly investigation is the only thing they care about and then only inasmuch as it's going to play out in the media to make them LOOK like they care about the community whether they do or NOT.
I think that if I'm ever unfortunate enough to live on the same block as a man who murdered an 8 y.o boy again, I'm going to choose going to jail for the night over talking to the police about it.

I have a friend who's a criminal defense attorney. He said, and I hope I repeat it correctly, but he said you do not have to give them information all on your own and feel as if you're trapped by them (b/c that's EXACTLY how I felt.)
You can request that a legal representative be present as you talk to them. I'm sure he said that, even though I was equally certain that legal representatives only factor into the picture when you're the suspect and I wasn't the suspect or ANY person of any significant interest. I was just one of the goddam unlucky people who lived on that street in Brooklyn New York, who never saw ANYbody go into or out of the murderer's house. The murderer - and I can call him that b/c he's already been convicted of it in a court of law - said "people are coming into and out of my house all the time. One of THEM must have put the boy's body in my freezer."
The body had been chopped up and was found in the freezer.
Anyway the police wanted to talk to every single person on the street, it seemed, and this is one reason I can't stand that the rest of the country freakin' WORSHIPS anybody in NYPD, b/c all they are to ME is a bunch of people who are cooled and warmed by the same winters and summers as ME, not the damn "little tin gods" that I believe Rudyard Kipling called them. But never mind.

I had no idea if I could talk with a legal expert present; I only knew I couldn't AFFORD a lawyer so I thought I had to talk to them without it and that's exactly what I did.
But I got angry at one point b/c I thought they were accusing me of things I was NOT guilty of and at one point I said "You have no right to accuse me of ANYthing and if that's what this conversation is going to go like from here on, then I want a goddam lawyer to sit here with me and listen while you talk.
At which point, they suddenly (it sure as hell felt sudden) had no further questions for me and I was free to leave but had to expect that I might be called by one side or the other (the Defense or the Prosecution) to give information about it.

I'd like it if one of these days you guys wrote some kind of article about a citizen's rights when being questioned by police doing homicide investigations, b/c I don't believe for two seconds that they gave a tiddlywink damn about me as a human being and thought they could act whatever way they felt like acting. I even think they were associating everyone on the street with the flea of a murderer who lived on the same street for no reason at all except that we lived on the same goddam street. Acting as if no person in a MIDDLE CLASS neighborhood (like Adam freakin' LANZA lived in) would EVER think of murdering someone.

Adam Lanza lived in an UPPER Middle Class neighborhood, and his mom broke every law on the books when she bought him the guns that killed all those people, so I don't want to hear a damn word from people thinking murder is a damn WORKING class crime.

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