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Columns : The Federal Voice

You Have the Right to Record

Congressional paranoia has sparked a new bill that could hinder federal investigations and lead to the posting of subject interviews on YouTube.

October 25, 2013  |  by Jon Adler

Photo via ClintJCL/Flickr.
Photo via ClintJCL/Flickr.
Before retreating into their undeserved summer recess, Congress decided to launch a bill targeting federal law enforcement officers. The Citizens Empowerment Act (H.R. 2711) is an attempt to thwart criminal investigations by launching them into the court of YouTube.  

H.R. 2711 would require federal officers to serve written notice to people under investigation that they are entitled to record interviews with the officers. The House majority attempted to minimize the import of this reckless proposal by asserting feds only have to provide notice if they hand "written materials" to the subject.

In response to this mind-numbing assertion, the Federal Law Enforcement Officers Association (FLEOA) attempted to go line by line with the bill's supporters as to why the bill is fatally flawed.

Starting on page 2, lines 16 and 18: The words "target of enforcement actions" are problematic. "Enforcement actions" refers to arrest and search warrant scenarios, surveillance, protection details, and certain undercover agent actions. The interview process does not necessarily entail any of the above enforcement actions, yet criminal investigators will routinely show documents to a subject. This is also true in the case of a witness who may become a subject based on evidence obtained during the investigation.

Are we expected to halt the interview process and allow the subject to run to Best Buy to purchase a recording device? I think the purpose of the bill, as written, is unclear as to its true intentions. The conduct of federal law enforcement officers is already investigated. So we don't need this.

Looking at Page 2, lines 22 and 23: Why not exempt federal law enforcement officers and prosecutors here. This would solve the problem in one sentence change.

On Page 3, line 4: we do not consent to the recording of our in-person or telephonic interaction. This will make a mockery of the investigative process. Sensitive investigations will wind up on YouTube. The potential harm this could cause an investigation is profound. The grand jury process is secretive for a valid purpose and should not be seen as reality TV. All of the evidence obtained by the government is already disclosed to the subject through discovery.

Going to Page 3, lines 7 through 16: what exactly is meant by "written materials provided?" If we're executing an arrest warrant and I hand a copy of the warrant to the subject, am I also supposed to hand that subject a written notice of the right to record our interaction? Do I pause the arrest and allow the subject to grab a recording device before attempting to speak to him? Does this bill intend to change the Miranda warning and now require us, in written form, to add "You have the right to record all of our interactions?" Does the same apply to the execution of a search warrant?

Timing is critical to interviews and enforcement actions, and can impact officer safety and investigative discretion. Once we serve the proposed written notice, a grand jury investigation transitions into a circus quest. The transmittal of an audio recording in the social media realm can impact the cooperation of prospective witnesses and affect the safety of officers and agents conducting related investigative acts in other states. It can also spur news media speculation that could taint a prospective jury pool.

What happens if during the post arrest process, a subject decides to cooperate but insists on taping the interview? During the interview, certain investigative disclosures may be made, as well as questions to ascertain the veracity of the subject's cooperation. Subsequent to the interview, if the subject changes his or her mind regarding cooperation or decides to exploit this recording process as a ruse to obtain additional information from investigators, how can we contain the damage a release of this recording may cause? We use a variety of interview techniques and we do not want this broadcast to the criminal element at large.

FLEOA has received no response from the bill's authors regarding these questions and concerns. If certain members of Congress are inclined to target the White House for questionable policies, practices, and actions, they shouldn't do so by smacking federal officers who risk their lives to keep our citizens and institutions safe.

Comments (9)

Displaying 1 - 9 of 9

frank @ 10/17/2013 9:13 AM


J-Madison @ 10/25/2013 1:17 AM

The growing police state is overwhelmingly one-sided against the people, but you throw a fit because they give a tiny crumb of freedom back to the people. This is nothing. You shouldn't be doing 99% of the stuff you do already.

Just out of curiosity, exactly how much power and authority over the people do you desire? How much is enough? Your boys that write in the gang section of this site say that they want to be able to perform summary street executions, based on their own hunches. There's a former prosecutor that comments on this site who says that he doesn't like the idea of jury trials. He says that a jury should be group of professional government employees (his co-workers), and that would make his job a lot easier, as if it wasn't easy enough already.

The police are supposed to be public servants who make below average to average pay and live among the people, but they have become a privileged, arrogant class of individuals, and you don't sound like an exception.

Cajun @ 10/28/2013 7:33 AM

J-Madison, so what you are saying is that every leo should be forced to work in dangerous situations, risking life and limb (possibly never seeing their families again) being spat upon, having eggs thrown at then, and do this all with making about the same as someone at McDonalds, or even less? How also I read a lot of things on here, I have yet to see an article written that calls for street executions. What someone comments is there beliefs not necessarily everyone else's, just like your steaming pile you wrote. But, I do have questions for you, what have you done to make the world a better place? Also, do you condone violence against those who are on the front lines while you sleep in your bed, or drive your vehicle (which I would be looks like something my truck would crap out, if it could take a crap).

Certes @ 10/28/2013 2:44 PM

Cajun, while I agree with you 100%, to include your questioning of J-Madison's actions to make the world a better place, any salient point that you made was lost when you began making personal attacks. If a reader were on the fence about what J-Madison had said, your response may have pushed them to his side, simply because of the manner in which it was delivered. Remember- the cop haters and anarchists NEED this kind of response in order to keep their followers moving in their direction. Take away their rallying points, and the majority of them will soon lose interest and go on to whatever their new cause of the day is.

J-Madison @ 10/29/2013 4:44 AM

Cajun, I expected to get silly responses like yours, filled with hyperbole, so that's not a problem, but I do want to tell you about one thing that did anger me.

You fucked up the image that I've always had of a Cajun person. Up until now, I've always pictured a Cajun person as a freedom loving guy, wearing red suspenders, saying "oooh weee" as he adds just one more dash of cayenne power to the pot of gumbo.

Now I can't shake this crazy visual that I have of an unstable big government loving cop, huffing and puffing over a keyboard, as he flies off the handle over an internet discussion. I even have this distorted picture in my head of you driving a big 4x4 truck with a giant United Nations flag, and a bumper sticker that says "Government Works".

I want to get your response to the important issues that I raised, but I'm running out of room for this comment, so just answer back and we'll keep it going for the readers.

Jimmy @ 10/31/2013 12:00 AM

Cajun - all the things you enumerated to pander for sympathy and justify above average pay are all part of a job you signed up for voluntarily. Last time I checked, there is no draft into law enforcement. The job is difficult and dangerous and it is a service position. if its too much for you to handle, then quit. It sounds to me like you took the job for all of the wrong reasons. Nobody owes you a damed thing - but you are obligated as a matter of your oath to serve the public within the confines of the law. Period. Your comments betray an attitude that is 100% responsible for why police are no longer trusted or respected in America today. The police are out of control and out of bounds because a majority of you believe you are the law and can do whatever you think is right or expedient in your own eyes. Well, you're wrong and we are sick and tired of it.

wasson6515 @ 10/31/2013 10:17 AM

Been a cop for going on 26 years now, I have yet to be able to find, use or obtain all this freaking supposed super power all you flipping people always claim we have. I can't arrest you because you are illegal, I can't arrest you because you don't have a driver license and put everyone on the road in danger, I can’t arrest you for possession of marijuana, possession of hash or driving under the influence of marijuana. I can't stop you from living on the street, begging, shitting on the sidewalk, pissing in front of my family. I can't curse you but you can say anything you want to me, I punch you, you file all kind of civil right claims against me, the media and every liberal bullshit organization in the world tries to crucify me, you punch me, and it is all part of the job, suck it up that is what you get paid for.

wasson6515 @ 10/31/2013 10:17 AM

I spit on you, the sky comes crashing down, you spit on me, take it, it is part of the job. you complain if I roll through a stop sign, you complain if I come to a full stop and hold you up. you don't like the way I handle a call, you have the right to file a formal complaint that gets thoroughly investigated and I get treated like shit until I can clear my name, even then it stays in my record jacket for at least five years. my department was cut in half and we took a total of a 47% pay and benefit cut, you say too freaking bad, it is what you signed up for, it is part of the job, if you don't like it go do something else, but if it were you the first thing you whinny sons of a bitches would do issue.

wasson6515 @ 10/31/2013 10:17 AM

You piss, moan and bitch about the blue suits, you always come up with this bullshit you are a servant, and you serve the public. Kind of true, however, I serve the entire public; I am not your slave. You always spew your oral diarrhea at anyone wearing a uniform then suck the dick of every low life, traitorous politician starting from the local cock smooches all the way to the White House giving them cart-blanc to fuck Lady Liberty and use the Constitution for toilet paper. It is not the police that are out of control, you want to see out of control, look in the freaking mirror you self important miscreants. You cry foul and accuse me of being out of control, crooked, and an abuser, yet you, in the same breath and with the same mouth do the exact thing you accuse me of.

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