Has the Department of Justice ever issued formal guidance about citizen recording of federal law enforcement, and where can it be found?
Executive summary
The Department of Justice has publicly and formally taken the position that citizens possess a First Amendment right to record law enforcement in public and has intervened in litigation to defend that principle, while also issuing a separate, formal departmental policy favoring electronic recording of custodial interviews by federal agents (two distinct forms of “recording” often conflated in reporting) [1] [2] [3]. The right to record is grounded in federal appellate precedent, but it is subject to time‑place‑manner limits and other statutory constraints such as wiretapping and obstruction laws [1] [4] [5].
1. DOJ has said citizens can record police — and it has backed that view in court
The Department of Justice has “openly stated its position” that the First Amendment protects the recording of police activity in public and has intervened in civil‑rights litigation to support that right, a posture reported by legal guides and advocacy groups and reflected in DOJ correspondence cited in litigation [1] [6] [7]. Multiple summaries by legal and civil‑liberties organizations note that the DOJ has treated bystander recording as constitutionally safeguarded speech and information‑gathering about public officials, and the Department has used letters and amicus positions to press that interpretation in at least one documented instance involving a Baltimore case [7] [6].
2. DOJ’s formal internal policy on electronic recording is about interrogations, not bystanders
Separately, the Justice Department adopted a formal policy creating a presumption that interviews of federally detained persons will be electronically recorded—an internal law‑enforcement practice change announced by DOJ officials and discussed in DOJ archives and legal commentary [2] [3]. That policy addresses agency recording of custodial interviews (how federal investigators record suspects and witnesses), not citizen filming of officers on the street, and it does not create a constitutional right for a defendant to demand recording [3] [2].
3. Where that DOJ guidance can be found
Public statements and DOJ actions defending the First Amendment right to record are documented in DOJ letters and amicus filings referenced by civil‑liberties groups and legal reporters—examples include a DOJ letter tied to the Baltimore video‑deletion dispute and the Department’s public materials cited by advocacy organizations [7] [6] [1]. The DOJ’s formal policy on electronic recording of custodial statements is available in the Department’s Office of Public Affairs archive and was widely reported after the policy change (archived DOJ press release announcing the presumption to record custodial interviews) [2] [3]. Reporting and legal guides (EFF, RCFP, FIRE, DMLP) summarize the DOJ positions and cite those documents as well [4] [8] [9] [1].
4. Legal context and practical limits DOJ acknowledges
The constitutional right the DOJ defends sits atop a patchwork of appellate rulings recognizing a First Amendment right to record government officials in public, but the right is not unlimited: courts and DOJ commentary acknowledge that recording may be restricted for legitimate safety, interference, trespass, or wiretapping reasons and that criminal statutes (or lawful dispersal orders) can sometimes be implicated if a recorder actually obstructs an operation or violates state/federal recording statutes [1] [4] [5]. Advocacy groups and legal resources repeatedly warn that, despite the right, individuals can still be detained or charged in the field and may need counsel to challenge unlawful interference with recordings [7] [10].
5. Conflicting agency messages and why that matters
Other federal agencies or spokespeople occasionally send contrasting messages—recent reporting about DHS rhetoric suggests agency officials may frame persistent following or filming of officers as obstruction even when courts and DOJ policy protect bystander recording, highlighting an interagency tension that can lead to arrests and litigation [11]. That divergence matters because DOJ statements and internal policies carry weight in civil‑rights enforcement, but they do not automatically prevent field arrests or agency guidance from being interpreted more restrictively by non‑Justice Department actors [11] [4].
Conclusion
The Department of Justice has formally and publicly endorsed the First Amendment protection for citizens to record law enforcement in public—documented in DOJ letters and court interventions—and it has a separate, archived formal policy directing federal agents to presumptively record custodial interviews (the DOJ press‑release and archive for the electronic‑recording policy are the clearest single sources) [7] [2] [3]. That endorsement exists alongside legal caveats and agency inconsistencies: recording is protected but not absolute, and the precise texts and contexts are best read directly in the DOJ letters and the archived Office of Public Affairs material cited above [6] [2].