As the market for portable products offering recording capabilities continues to expand, so does the risk that comes with how users choose to use the technology.

In Minneapolis in January, Alex Pretti was killed after an encounter with federal agents while filming them with his phone. He was not a suspect in a crime. He was not interfering. He was doing what millions of Americans now instinctively do when they see state power in motion: witnessing.

Pretti’s death is still under investigation, and the legal facts will be contested, but the moral and political questions it raises is already clear. In an era when nearly every citizen carries a camera, the act of observing government force has become both easier and more dangerous. Technology has democratized documentation, but it has also transformed the witness into a perceived threat. The result is a troubling pattern: the very tools that were supposed to make power more accountable are increasingly met with intimidation, targeting and, in the most extreme cases, lethal force.

This is not an isolated dynamic. Journalists covering the Atlanta “Cop City” protests have been detained and charged under expansive domestic terrorism statutes. In Portland during the 2020 protests, federal officers repeatedly seized and questioned individuals whose primary “offense” was recording. Abroad, reporters in Gaza and the West Bank have been shot while clearly marked as press.

Pretti’s case highlights the issue. Federal agents operating in an American city confronted a civilian whose only apparent act was observation. Whether through panic, misjudgment or institutional culture, the presence of a recording device was treated not as a protected exercise of constitutional liberty, but as a provocation.

This is the quiet inversion taking place: The First Amendment once stood as a shield for those who spoke and those who watched. Today, in moments of tension, it is increasingly treated as an obstacle.

Technology has changed the architecture of accountability. In the 20th century, oversight flowed primarily through institutions: courts, legislatures and professional media. In the 21st century, it flows through networks. A single video can expose misconduct, contradict official statements and mobilize public scrutiny within hours.

But this shift has also created a perverse incentive. When documentation becomes ubiquitous, those who wield force know that every action may be dissected and judged. In that environment, the witness is no longer neutral but becomes a liability.

This leads to a chilling effect. If observing police activity can get you detained, pepper-sprayed or worse, rational citizens will think twice before lifting their phones. If the act of witnessing is now central to how constitutional accountability functions, then the law must evolve to protect it explicitly.

Congress should enact a clear federal “Right to Witness” statute. Courts have recognized a First Amendment right to record police, but doctrine alone is insufficient when agents on the ground operate under stress and ambiguity. A statute should make plain that recording or observing law enforcement, including federal agents, is presumptively lawful, and that detention, seizure of devices or use of force solely on that basis is prohibited. Retaliation against witnesses should carry enhanced civil and criminal penalties.

Qualified immunity should not shield officers who use force against individuals engaged in clearly lawful observation. The doctrine was designed to protect reasonable mistakes in fast-moving situations, not to insulate retaliation against constitutional oversight. When the conduct at issue is the suppression of a core First Amendment activity, the legal system should err on the side of accountability.

The legal system should treat bystander footage with the same seriousness as official body-camera recordings. Preservation requirements, chain-of-custody rules and penalties for destruction or suppression should apply equally.

Finally, there should be a clear civil cause of action for obstruction of lawful civic observation. When individuals are targeted, injured or killed because they were documenting state conduct, they and their families should not have to rely solely on discretionary prosecutions or protracted constitutional litigation. The law should recognize interference with witnessing itself as a distinct and grave harm.

Beyond statutes and doctrines, there is a cultural shift that must occur. Filming police is often framed as antagonistic, as if the camera were an insult rather than a safeguard. In reality, it is an expression of the same civic impulse that underlies jury service, public trials and a free press. It is how ordinary people participate in the maintenance of lawful government.

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David M. Hatami is an offensive security project manager and a Public Voices Fellow on technology in the public interest with The OpEd Project. He previously managed cybersecurity and penetration testing operations at Amazon Web Services and was a fellow with Youth for Privacy.

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