PRIVACY AND THE RIGHT TO RECORD ∗ MARGOT E. KAMINSKI INTRODUCTION ............................................................................................... 168 I. THE EXPANDING FIRST AMENDMENT ................................................. 172 II. RECORDING AS SPEECH ....................................................................... 177 A. Recording as Nonspeech ............................................................. 177 B. Protecting the Right to Record: First Amendment Theory .......... 179 C. A Note on Automation ................................................................. 182 D. Free Speech Intuitions and the Right to Record .......................... 184 E. First Amendment Doctrine and the Right to Record ................... 185 F. Recording as Speech? .................................................................. 190 G. Recording as Access .................................................................... 191 H. Recording as Speech Entwined with Action ................................ 196 III. PRIVACY AS ACTION ........................................................................... 199 A. Privacy as Physically Situated .................................................... 203 B. Situated Privacy in the Case Law ................................................ 207 1. Privacy in the Home .............................................................. 207 2. Situated Privacy and Exposure to Different Audiences ......... 209 3. Situated Privacy and Buffer Zones ........................................ 210 4. Situated Privacy and Persistence Over Time ......................... 214 5. Situated Privacy and Trusted Spaces for Communication ..... 217 IV. PRIVACY MEETS THE RIGHT TO RECORD ............................................ 218 A. Why Nonprivacy Regulations Alone Are Inadequate .................. 219 B. Why the Doctrine Changes Depending on Physical Location ..... 220 C. How Privacy Can Be Separated from Speech ............................. 223 1. The Government Interest ....................................................... 224 2. Content Neutrality ................................................................. 225 3. Tailoring ............................................................................... 229 4. Consent of the Unwilling Subject .......................................... 231 D. The Tests Applied: Examples ....................................................... 232 ∗ Assistant Professor of Law, the Ohio State University Michael E. Moritz College of Law. Thanks to the faculty of Chicago-Kent College of Law and Cornell Law School; participants at the Yale Freedom of Expression Scholars Conference in both 2015 and 2016; participants at Privacy Law Scholars Conference 2016; and to Jane Bambauer, Ashutosh Bhagwat, Marc J. Blitz, Kiel Brennan-Marquez, Alan Chen, Danielle Citron, Julie Cohen, Seth Kreimer, Toni Massaro, Paul Ohm, Joel Reidenberg, Jocelyn Simonson, David C. Vladeck, and Timothy Zick for helpful comments, advice, and encouragement at various stages of this Article. 167 168 BOSTON UNIVERSITY LAW REVIEW [Vol. 97:167 1. Recording in Public Locations .............................................. 233 a. The Illinois Eavesdropping Statute ................................. 233 b. The Wisconsin Drone Law .............................................. 235 c. The Arkansas Automatic License Plate Reader Law ...... 236 2. Recording in Private Locations ............................................. 238 a. The California Privacy Protection Act ........................... 238 b. The Idaho Ag-Gag Law .................................................. 240 c. The School Case ............................................................. 241 CONCLUSION ................................................................................................... 242 Many U.S. laws protect privacy by governing recording. Recently, however, courts have recognized a First Amendment “right to record.” This Article addresses how courts should handle privacy laws in light of the developing First Amendment right to record. The privacy harms addressed by recording laws are situated harms. Recording changes the way people behave in physical spaces by altering the nature of those spaces. Thus, recording laws can be placed within a long line of First Amendment case law that recognizes a valid government interest in managing the qualities of rivalrous physical space, so as not to allow one person’s behavior to disrupt the behavior of others. That interest, importantly, will not always justify suppressing recording, but it can be distinguished from an impermissible government interest in suppressing speech. Moreover, the government’s interest in managing the qualities of a particular environment can itself be speech-protective—and has been recognized as such. As technological development brings more recording devices into the physical world, courts will need to determine how to balance speech interests and privacy. First Amendment doctrine, often blunt in nature, is in fact, and perhaps surprisingly, equipped to address the nuances of this challenge. Regulating recording governs a moment of interaction in physical space, not a downstream editorial decision that may cause dignitary harms. Regulation, thus, does not break with the U.S. free speech tradition of protecting the publication and distribution of information. INTRODUCTION Many laws in the United States protect privacy by governing recording. Wiretap and eavesdropping laws, video voyeurism laws, and a host of new privacy laws all target the moment at which a recording is made or information is gathered. Recent cases, however, have recognized a First Amendment “right to record.”1 While commentators have argued for the existence of this First 1 See ACLU of Ill. v. Alvarez, 679 F.3d 583, 595 (7th Cir. 2012); Glik v. Cunniffe, 655 F.3d 78, 83 (1st Cir. 2011) (“Our recognition that the First Amendment protects the filming of government officials in public spaces accords with the decisions of numerous circuit and district courts.”); Smith v. City of Cumming, 212 F.3d 1332, 1333 (11th Cir. 2000) (“[W]e agree with the Smiths that they had a First Amendment right, subject to reasonable time, 2017] PRIVACY AND THE RIGHT TO RECORD 169 Amendment right, none have analyzed, at any length, its implications for privacy laws.2 Privacy governance has always been in tension with the First Amendment.3 Usually, however, that tension has played out around the distribution of information, not recording or information gathering. Until recently, governing recording was, in fact, the simplest way to protect privacy in the United States without triggering First Amendment scrutiny. Governing the distribution of information interferes with a publisher’s editorial choices and often requires assessing a reader’s reaction to speech.4 manner and place restrictions, to photograph or videotape police conduct.”). 2 See Jane Bambauer, Is Data Speech?, 66 STAN. L. REV. 57, 105 (2014) (arguing that recording is First Amendment salient, but electing not to set the level of scrutiny that should apply to privacy laws, as “the answer will depend on context”); Ashutosh Bhagwat, Producing Speech, 56 WM. & MARY L. REV. 1029, 1079-80 (2015) (arguing that recording, as a type of speech production, should be protected, but only when it produces information about a matter of public concern); Seth F. Kreimer, Pervasive Image Capture and the First Amendment: Memory, Discourse, and the Right to Record, 159 U. PA. L. REV. 335, 380-81, 384, 398 (2011) (arguing that recording is protected as an extension of memory, though the right might be considered waived in private spaces); Justin Marceau & Alan K. Chen, Free Speech and Democracy in the Video Age, 116 COLUM. L. REV. 991, 997-98 (2016) (arguing that the First Amendment protects recording even when it occurs in a privately owned space); see also Marc Jonathan Blitz, The Right to Map (and Avoid Being Mapped): Reconceiving First Amendment Protection for Information-Gathering in the Age of Google Earth, 14 COLUM. SCI. & TECH. L. REV. 115, 122 (2012) (discussing how the right to free expression should include a right to information gathering, and envisioning exceptions for privacy). See generally Marc Jonathan Blitz et al., Regulating Drones Under the First and Fourth Amendments, 57 WM. & MARY L. REV. 49 (2015) (discussing the right to record in the context of unmanned aerial vehicles). Joel Reidenberg has discussed the right to record from the perspective of privacy law, and is largely critical of the developing First Amendment framework, believing that any protection should be limited in scope to protecting matters of public concern. See Joel R. Reidenberg, Privacy in Public, 69 U. MIAMI L. REV. 141, 152 (2014). 3 See, e.g., Neil M. Richards, The Limits of Tort Privacy, 9 J. ON TELECOMM. & HIGH TECH. L. 357, 361-65 (2011) [hereinafter Richards, The Limits of Tort Privacy] (discussing the tension between the disclosure tort and the First Amendment); Eugene Volokh, Freedom of Speech and Information Privacy: The Troubling Implications of a Right to Stop People from Speaking About You, 52 STAN. L. REV. 1049, 1051 (2000). But see Margot E. Kaminski & Shane Witnov, The Conforming Effect: First Amendment Implications of Surveillance, Beyond Chilling Speech, 49 U. RICH. L. REV. 465, 466-67 (2015) (identifying studies that suggest that surveillance produces conformity, which has negative implications for First Amendment freedoms); Neil M. Richards, Intellectual