You Are Being Audited

Spectator

We’re being audited, but not by the IRS.

More and more there are now among us folks with cell phones and/or digital video cameras and microphones standing outside post offices, banks, cannabis dispensaries, restaurants—any place people are likely to gather or come and go. Often calling themselves First Amendment auditors, they do nothing but record people coming and going and are sometimes confronted by those people or, rarely, by law enforcement.

The public frequently fails their audit.

The auditors have popular social media sites in which the world can view their interactions. As long as they are on public property—think sidewalks, easements, parking lots—and the people they are recording are in public, what they are doing is legal whether those being recorded agree to it or not.

There is something called the Plain View Doctrine that basically says there is no expectation of privacy when we are in public. There are some obvious exceptions like public bathrooms, but not many. Leave the privacy of your home or business, and your expectation of privacy ends.

These auditors should be distinguished from those who follow people sticking a cell phone in their face as part of some ill-conceived “prank.” Auditors typically find one spot and simply stand there. They are well-versed in the law and their constitutional rights, and they tend to leave people alone who leave them alone.

All of this comes to mind because one of these semi-famous folks mentioned in passing his family “vacations in northern Michigan,” and it’s possible he’ll be auditing here. If so, just ignore him.

Not everybody is happy to see folks standing outside their post office or bank or dispensary recording them. Some decide it would be a good idea to confront the auditor, which is usually a mistake. They often start their complaint with one of the most ironic of comments. Walking directly up to the camera, they say they do not want to be recorded. That’s a bit like saying you don’t want to get wet after jumping in the bay.

That complaint is almost always followed by “You do not have my consent to record me.” Or, its companion, “I did not sign a release saying you could record me.” Let’s revisit this; you are in public, they are on public property, they can legally record you all they want, including your vehicle and its license plate. (A little confusing why people are upset about the license plate thing since it can be easily viewed by anybody every time you are in public.)

The dispensary employees are the best, often claiming their “patients” are protected by HIPAA and can’t be recorded. HIPAA, the Health Insurance Portability and Accountability Act, passed in 1996, has nothing to do with protecting the identity of someone in public entering a weed dispensary.

Then they call the police, and the well-trained and wise officers will kindly explain that the auditors are within their rights no matter how offended somebody might be. It’s the offended party who approached the auditor and started the kerfuffle. Occasionally, a tyrant officer will attempt to bully the auditor to leave or, in a worst case, arrest the auditor, almost guaranteeing his or her jurisdiction, or their insurance company, will be gifting the auditor a financial settlement.

If you make physical contact with the auditor or attempt to grab their equipment, there’s a pretty good chance you will receive a face full of pepper spray for your efforts and then be arrested for assault. If that seems backwards to you, remember the auditors are engaged in a legal activity and attempting to stop them is not. For your efforts, you will be recorded, pepper-sprayed, arrested, and all of it will be posted online and viewed by anyone who wants to view it.

To be fair, when confronted, many of the auditors feel no need to be polite and are willing to be every bit as verbally aggressive as those confronting them. They literally do this for a living, know their rights, and baiting you into even greater anger only increases their online views.

The bigger issue here is our naive assumption we have any privacy left. Those complaining so loudly about the auditors seem to have forgotten there are now cameras everywhere. According to SafeHome.org, there are nearly 59 million doorbell or front door cameras on private homes and slightly more than 39 percent of all homes have at least one outward facing camera. Many, many businesses now have cameras both inside and outside their stores, warehouses, or factories. Neither the homeowners nor the businesses have our permission because they don’t need it.

Passing a First Amendment audit is more important than someone’s temporary annoyance. If the auditors come to Traverse City, just ignore them, and they will ignore you.

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