Shielding Police From Microphones

The police can tape record you, but you can’t record the police. At least not if you’re in Illinois.

Two Chicago residents are separately facing charges, which in each case could lead to up to 15 years in prison, for turning on recording devices during encounters with police officers. Christopher Drew intentionally set himself up to be arrested as a protest against a city ordinance requiring permits to sell art on the street. Tiawanda Moore was attempting to file a sexual harassment complaint against a police officer and wanted to document Internal Affairs’ refusal to take her case seriously. Neither knew that pressing the record button was a Class 1 felony.

The Illinois Eavesdropping Act prohibits recording conversations without the consent of all parties. While many states prohibit the recording of private conversations, even by one of the participants, only a handful extend their laws to conversations that take place in a public place, such as on the street or during a traffic stop. Ordinarily, violators of the Illinois law receive a maximum of three years in prison for a first offense, or five years for a second offense. But longer sentences can be imposed for recording a law-enforcement officer, state’s attorney, assistant state’s attorney, attorney general, assistant attorney general or judge while that person is performing his or her duties.

The American Civil Liberties Union filed a lawsuit challenging the statute last year, with Drew serving as the plaintiff. On Jan. 10 the suit was dismissed for the second time by a federal judge in Chicago. The ACLU said it will appeal.

Protecting privacy is important, but privacy considerations ought to apply only to actions that are actually conducted in private. If I choose to sit in front of my computer in my underwear at home, with my blinds closed, it is reasonable for me to expect that no one will sneak into the house or – perhaps more likely these days – hack into the computer to take a picture. But if I take my computer to a nearby park, without first donning pants, I can’t expect people not to look, and I have no guarantees that no one will snap a photo.

There is nothing private, or at least there should be nothing private, about what a public official does in public while interacting with members of the public on public business.

By preventing private individuals from keeping records of the truth, The Illinois Eavesdropping Act amounts to an obstruction of justice. Only instead of interfering with police officers’ ability to gather evidence of suspects’ guilt, it interferes with citizens’ rights to gather evidence of their innocence or of crimes committed against them. The law includes a provision that, if a person has “reasonable suspicion” that a crime is about to be committed against him or her, he or she can use a recording device to collect evidence of the crime. But most of us are not psychics, so generally the only way to know about a crime is after the fact.

Moore’s case is particularly telling. The alleged sexual harassment occurred, by her account, when a police officer was talking to her regarding a domestic violence call. When she tried to file her complaint, she was given the run-around. She said she turned on her cell phone’s recorder to document the Internal Affairs officers’ refusal to take her complaint. When the IA officers discovered that she was recording their conversation, they arrested Moore and charged her with eavesdropping – on a conversation in which she was a participant.

Law enforcement officials seem to fear that their words could be misconstrued, edited or taken out of context if they can be surreptitiously recorded. Otherwise, why would a conscientious officer be concerned about having his or her remarks captured? Yet Mark Donahue, president of Chicago’s Fraternal Order of Police, said the officers’ union supports the current law because secret recording “can affect how an officer does his job on the street.” Yes, that would be the point.

If surreptitious recording is so prone to abuse, we need to consider another question: Why does the Illinois law allow officers to record civilians without giving them notice?

While Moore’s case highlights the problems with the law from a criminal justice perspective, Drew’s case illustrates how the law can inhibit public debate about government conduct. To debate government actions, we first need to know what the government is doing. This does not give us the right to walk into the mayor’s office and rummage through his desk. But it ought to give us the right to record official action that directly affects us. This is exactly what Drew was attempting to do.

Before intentionally violating the city ordinance on selling art, he stowed a digital recorder in one of his bags and stationed a friend nearby with a video camera. Drew’s plan was to use the footage of his arrest in his campaign against the ordinance. But instead of facing a misdemeanor charge for selling his art, Drew was charged with felony eavesdropping.

The Illinois law is problematic even in encounters that don’t involve the government. As I have written before, the truth is an absolute defense against libel and slander charges. This means that we all have an interest in being able to present evidence of the truth. To do this, we ought to be permitted to record the events and conversation in which we are involved.

The ACLU is challenging the law on free-speech grounds, which may be why it is having little success in court. Allowing or banning recording does not seem, to me, to have much to do with freedom of speech. I see it more as an invasion of privacy. I believe I have a private right to write down or record anything you choose to say to me, and, barring restrictions like attorney-client privilege, to repeat what I hear wherever I want. In any case, I think my right to accurately recount what you say to me trumps your right to deny that you said what you said.

You surely have privacy rights, too, including the right not to have a third party eavesdrop on our conversation. But I don’t think your privacy extends to the point that you can prevent me from recording or repeating what you say to me. You give up that right when you choose to speak to me in the first place. This is especially true if I am a private citizen and you are a public official speaking to me in the course of your duties.

Whether or not the Illinois law is constitutional, it certainly is bad policy. The recording ban is an obstacle to truth. The people who usually have most to fear from the truth are liars.

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