TheAgitator.com
Illinois: Where Recording On-Duty Cops Is Treated Like Sexual Assault
Thursday, May 20th, 2010I have a cross-post (cross-posted post? post that’s crossposted? I give up.) at Instapundit and Hit & Run about the state of Illinois’ insane eavesdropping statute.
MORE: A reader writes:
Does this mean that if a cop sexually assaults you and sensing danger, you hit “record” on your iPhone just before it happens, you could go to prison for the same or more amount of time as the cop?
Not sure if this is a serious question, but the law does at least make that outcome possible. That said, I can’t see it ever happening.
While this law goes against everything I believe in, I cannot identify the strongest constitutional arguments against it. Its more of a policy based argument that would have worked in the 60s, but not today.
Radley, I put this on the tread below but then you made this new thread,
Why aren’t civil liberty groups like the ACLU not stepping up to help Christopher Drew fight the Chicago police over taping his own conversation with the police? There is something inherently unfair when cops can often tape you, but you can’t tape the cops.
Seems like this a battle that the ACLU should be involved in?
And if the ACLU is not going to pick up the ball, where are other libertarian and conservative civil liberty groups? This guy should not face this alone.
I’m posting from Austria and have been trying to keep up with y’all on the agitator but don’t always have internet. Wow it’s so weird here. Cops are hardly ever seen. The one time we did see one he was actually helping a stranded motorist along the road. People here walk around with a beer or glass of wine in their hand in public and they seem relaxed and not afraid. It’s such a contrast to the police state America has become.
js-Austria probably does not have MADD lobbying to make anyone who has a drink a criminal.
#2:
I don’t know anything else about this specific case in Chicago, but the ACLU of Massachusetts actually did file suit on behalf of a man who was arrested in Boston for videotaping the police on his cell phone, and who was arrested under wiretapping laws.
http://www.boston.com/news/local/breaking_news/2010/02/_wwwbostoncomne.html
Under Illinois law, all parties to a conversation must consent before any party may legally make an audio recording of the conversation. The statute expressly provides that this prohibition extends to law enforcement officers. After spending an hour or so looking on the internet, as far as I can tell the Illinois police are abiding by this prohibition in that their dashboard cameras apparently do not record audio. http://www.popularmechanics.com/technology/military/4271213
While I believe the statute is almost certainly unconstitutional, the police do have an obligation to uphold the law (including the Constitution). Given that I do not expect police officers to be Constitutional scholars and that the Constitutionality of the law is an unresolved question, I am not going to criticize the police for enforcing the anti-eavesdropping statute as written.
I was surprised by the fact that Illinois police do not record audio from dashboard cameras. I started the search assuming that they did record audio, and my point was going to be that the police cannot enforce a law that they themselves are violating. However, given that the Illinois police are (apparently) not recording audio, I think the police are acting in accordance with the statute.
That being said – Change the law!
(720 ILCS 5/14‑1) (from Ch. 38, par. 14‑1)
Sec. 14‑1. Definition.
(a) Eavesdropping device.
An eavesdropping device is any device capable of being used to hear or record oral conversation or intercept, retain, or transcribe electronic communications whether such conversation or electronic communication is conducted in person, by telephone, or by any other means; Provided, however, that this definition shall not include devices used for the restoration of the deaf or hard‑of‑hearing to normal or partial hearing.
(b) Eavesdropper.
An eavesdropper is any person, including law enforcement officers, who is a principal, as defined in this Article, or who operates or participates in the operation of any eavesdropping device contrary to the provisions of this Article.
* * *
For the purposes of this Article, the term conversation means any oral communication between 2 or more persons regardless of whether one or more of the parties intended their communication to be of a private nature under circumstances justifying that expectation.
(720 ILCS 5/14‑2) (from Ch. 38, par. 14‑2)
Sec. 14‑2. Elements of the offense; affirmative defense.
(a) A person commits eavesdropping when he:
(1) Knowingly and intentionally uses an
eavesdropping device for the purpose of hearing or recording all or any part of any conversation or intercepts, retains, or transcribes electronic communication unless he does so (A) with the consent of all of the parties to such conversation or electronic communication or (B) in accordance with Article 108A or Article 108B of the “Code of Criminal Procedure of 1963″, approved August 14, 1963, as amended; or
* * *
(b) It is an affirmative defense to a charge brought under this Article relating to the interception of a privileged communication that the person charged:
1. was a law enforcement officer acting pursuant to
an order of interception, entered pursuant to Section 108A‑1 or 108B‑5 of the Code of Criminal Procedure of 1963; and
2. at the time the communication was intercepted,
the officer was unaware that the communication was privileged; and
3. stopped the interception within a reasonable time
after discovering that the communication was privileged; and
4. did not disclose the contents of the
communication.
it makes perfect sense- cops see cameras, they know they’re screwed.
Why is taping important? Here is a border guard getting some attitude for a stupid question by the border guard. This Canadian couple is unlikely to come back and spend money in the US after this (to be fair, Canadian boarder guards do this occasionally too). I have seen TSA officers do equally stupid and wasteful things at airports–not because they fear any terrorism, but purely because they are so thin skinned when you question their authoritah.
Seriously, you train these people to triage and act like professionals, they do not need to get in contests over their ego and waste time and resources (beyond acting like a complete asshat).
The initial question posed above by the border guard is poorly phrased and the response by the Canadian guy is a bit cocky, but so what. This is not about terrorism or protecting the United States, this is about the border guard getting ticked off– and giving that guard the excuse to show whose carrying the bigger nightstick. TSA guys do this stuff too.
They check points should be taped all the time to keep the guards and officers in line. It would also be a useful tool when real terrorists show up.
#6:
“I was surprised by the fact that Illinois police do not record audio from dashboard cameras.”
I’m sure they love it. No audio means they can ad lib whatever they want the guy to have said to them before beating the snot out of him. “He said he had a gun and was going to shoot me, so I subdued him prior to placing him under arrest. For my own protection. Because I was threatened by what he said. And since I’m a cop, you have to believe me. It’s the law.”
And anyone who offers recorded evidence to the contrary is hit with a felony. That’s right bitches! Feel the boot.
Also #6:
“the police do have an obligation to uphold the law ”
That’s not entirely accurate. They have an obligation to follow the law, and they have an obligation to uphold the law when requested to do so by others. For example, if you make a complain against another citizen for recording you without your permission, the police are obligated to carry through with that.
But when it comes to THEM being recorded, they have no obligation to press charges, that’s entirely voluntary.
I agree that “obligation” was the wrong word to use. Police have discretion in which laws to enforce. Thank goodness, given all the useless (or worse) laws on the books.
As to your prior comment that the police would rather not have audio, I disagree. The police in other states (which do not prohibit audio recordings in the public arena) have their dashboard cameras record audio as well as video. Police have dashboard cameras despite the fact that most states (none of which I am aware) have laws requiring such cameras. The police do this either because they believe the cameras provide some protection against meritless lawsuits or because police are true public servants who believe they should be subject to meaningful review (I vote for #1).
I believe that most cops are good people trying to make the world a better place. There are plenty of civil actions against police departments that are derailed by video showing that the complainant’s story simply isn’t true. My opinion (without any research to back it up) is that dashboard cameras more often than not corroborate the the police officer’s version of events (if for no other reason than the police know they are being recorded and therefore are more likely to prepare accurate reports).
That being said: (1) police officers are human and humans make mistakes; (2) there are bad apples in the police bushel basket. The ability of video recordings (and audio) to reveal these situations (and to encourage police officers to act professionally) is invaluable.
Illinois citizens can comply with the state’s law by disabling the audio input for video cameras (if there is an external microphone jack, simply plug in a disabled microphone). Again, the better solution would be to change the law.
Police have dashboard cameras despite the fact that most states (none of which I am aware) have laws requiring such cameras.
Should have been:
Police have dashboard cameras despite the fact that most states (none of which I am aware) DO NOT have laws requiring such cameras.
Joe @ #8
The biggest prick of a border guard I ever met was a Canadian one, so I don’t think it’s a matter exclusive to the U.S. It’s a job that allows for small-time abuse. However, I once had occasion to deal with border guards for an extended period. (Long story; no wrong-doing.) Here’s what I came away with.
As best as I can tell, their entire modus operandi is to act somewhere between abrupt and rude to complete prick when you’re at the gate, crossing the border. I think the idea behind that is to try to unsettle you, so that they can get a better read of you. The same several border guards who were pricks to me at the gate, only minutes later when I had to go inside to work things out, after it was clear that this was only a matter of not having the correct paperwork, were cordial, professional, and helpful. I drank their coffee from the pot in their office, at their invitation.
The best thing to do is to just play along. You’ll slip by the few who are real assholes.
I can’t see someone being successfully prosecuted for it, but it wouldn’t surprise me in the least if the woman in the theoretical case was charged.
That “eavesdropping law” is rife for abuse. Is there any way someone like a wedding videographer could practically avoid violating it without requiring written consent forms from all guests?
Yeah, I can see it now. A disclaimer on the bottom of a wedding invitation:
“Please join us* in celebrating the wedding of our lovely daughter to our new son-in-law”
*By accepting this invitation, you consent to be recorded in both video and audio and hereby indemnify the host against all future claims and damages resulting from said recordings. Any disputes will be resolved by an arbitrator chosen by the host in the State of the event. Any reproduction, retransmission, rebroadcast or other use of the images, descriptions and accounts of this wedding are strictly prohibited without express written consent of the host. Thank you for attending the happiest day of our lives and please leave your gift at the gift table. Don’t call us, we’ll call you.
And so on. Welcome to 21st Century Hell … er, Amerika.
Not sure if this is a serious question, but the law does at least make that outcome possible. That said, I can’t see it ever happening.
Considering there was a rapist cop in Brunswick Georgia who did make threats of this nature against his handcuffed victim after raping her…it isn’t as far fetched as you may think.
It’s not a serious question: of course you will go to prison for more time than the cop. You’re not a cop. Duh.
Does this mean that if a cop sexually assaults you and sensing danger, you hit “record” on your iPhone just before it happens, you could go to prison for the same or more amount of time as the cop?
I’d also like to point out that a cop has a reasonable expectation of privacy when he’s sexually assaulting you. That’s why he isn’t doing it in public.
Wouldn’t the video evidence of the police officer sexually assaulting someone be inadmissible in court if it was illegal to record it? If so that would make it the woman’s word against the cop. If that’s the case (And IANAL, obviously) then you could actually be convicted of the crime of videotaping a cop committing a crime for which the cop walks because there’s no evidence of his crime.
You just made my head hurt, JT.
I see absolutely no good reason why a person cannot record every aspect of their life–at all times–as long as others are notified that they are being recorded. EVERY aspect of ANY interaction between the state and an individual should be recordable WITHOUT having to inform the state of the recording.
IMHO.
The Update:
Your right Radley, this would never happen. The recording would be suppressed at the cops trial as illegal evidence, the cop would walk free after a lengthy vacation with pay and the victim would do the time in jail for recording the crime.
#6
It might have changed in the past 10 years, but in 2000 the ISP was recording audio or they claimed to be. They might have been lying about it. I got the ticket thrown out on procedural grounds before it went to court, so they didn’t have to produce an audio recording.
Does this mean that if a cop sexually assaults you and sensing danger, you hit “record” on your iPhone just before it happens, you could go to prison for the same or more amount of time as the cop?
No. The cop gets two weeks of paid leave, while you’ll go to jail.
Reading the law as posted above, it doesn’t seem to indicate anywhere that the person has to STOP recording (unless he’s an LEO and it’s privileged communication).
So… if a person informs the police that he’s recording and the police don’t consent, is there anything preventing the person recording to say “I’m going to continue recording, if you don’t want to be recorded, don’t talk”?
I know… it would result in many bad things happening, but it’s an interesting question of responsibility.
That’s a good point, Blaze. The law doesn’t require consent, just awareness.
“I’m recording this… now.”
Er, no, it does require consent, oops.
“Wouldn’t the video evidence of the police officer sexually assaulting someone be inadmissible in court if it was illegal to record it?”
The video evidence should be admissible in court becase video recording is illegal in Illinois only in limited areas (such as changing rooms and tanning booths). The audio portion of any recording might be subject to exclusion. It’s easy to strip audio from a video recording.
Yeah, because if it did happen you’d go to jail and the officer would get a commendation or promotion or both. Duh.
I watched a Cubs game the other day, and I wonder if they went and asked each person in the stadium for a release prior to the game?
Football, hockey, basketball?
My god can you imagine if Obamalamdama had actually gotten the IOC to choose ChiTown for the Olympics! Right afterward all the cops would be wearing gold around their necks, because they could easily set new arrest records in the audio recordings events.
“That said, I can’t see it ever happening.”
That’s true.
It is far more likely you’d get more time in the slammer than the police officer.
(Sorry, I’m feeling rather cynical today… which I seem to be feeling on more days than most these days)
MacK
I bet if you read the tickets, there’s probably some legal jargon like in Cynical’s post at #17. Of course such ‘consent by purchase agreements’ are invalid unless you have legal representation present when making the purchase. So a stadium or any other major public event can illegally bypass the law with a phony contract and officer’s performing in their official duty are given a benefit of the doubt on a specious argument of personal privacy.
But if you record the person who attempts to mug or rape you, you’re suddenly a criminal. In the case of a mugging, you would be a felon compared to a potential misdemeanor charge for the mugger, according to the letter of the law that is.
Its days like this I want to move to Europe. If my choice is a police state or a nanny state I’m starting to think I should go with the one that at least pretends to care about my well being.
#33, Your idea that you’d spend more time in the slammer is ludicrous. That would indicate that the cop would go to the slammer in the first place!
It is important to remember that just because a law exists, that does not compel the executive branch of government to enforce it. Informal selective enforcement occurs constantly. Exemptions and variances obtained through legal channels also occur.
Always and forever, whatever benefits the State will be its chosen course of action.
Indeed Radley, I can’t imagine that particular example occurring in real life either. As we know, rapist pigs don’t serve jail time.
http://radgeek.com/gt/2010/05/21/men-in-uniform-contd-officer-james-vernon-clayton-north-las-vegas-police-department-north-las-vegas-nevada/
Peaceful videographers on the other hand…
“the law does at least make that outcome possible. That said, I can’t see it ever happening.”
Of course it could never happen, that would require prosecution of a cop.
It is the obligation of all citizens (or at least the right) to protect this country from ALL threats, INTERNAL and external. A crooked cop or politician is the worst kind of terrorist as they are willfully damaging america and trying to circumvent the real rule of law (the one of and for the people, not the beurocracy) the definition of this is sedition. This should be (and probably technically already is) treason.
an obvious incentive to be corrupt, violate peoples rights and plain entrap and frame CITIZENS is that in over 40 states and at the federal level, police and prosecutors get to keep all or most of the property that they seize for their own use, this is a clear motive for criminal acts and should be pointed out in criminal proceedings as a defense. If it was a person or organization that had this kind of motive it would be questioned in a court of law that thier testimony might be contrived as a means to increase thier wealth.
I propose having a system like onstar (that is NOT controlled by the driver), this system can utilize wireless internet to transfer the video and audio to another location that the crooked cop who wants to cover up his crimes cannot have access to. When you get pulled over hit the button that sends a message to the service warning them that you might be a victim soon of ANY crime by ANYONE (not just a cop) and they will manually start recording by sending the recorder on signal to your vehicle.
In this way you are not doing the recording and it is not your equipment. They shouldn’t be able to charge you at that point. ( but they will just manufacture some other charge if they really want you)
The fact that YOU didn’t record it, It is a pay service, and it is not your equipment should prevent you from being charged with a crime.
ALL corrupt governmnent employees and elected officials who are caught taking bribes are guilty of sedition and should be executed as traitors. I am specifically speaking about George Ryan and Blagojevich in illinois.
It is time that the government start representing the people and not itself. ALL traitors should be tried and executed as such, just like we did with the spies in the 50s and 60s.
On the same lines ALL lobbying should be declared illegal as it is plainly legalized bribery with the intent to change the laws of the US by means of coercion and bribery, thus SEDITION.
SIGNED: a soon to be former american, as I have no hope for AMERICA any more due to corruption, special interests and corporate and banking takeover.
btw, the only reason i am posting this is that I am moving to europe in a day and don’t have to live in fear for expressing these patriotic feelings, good luck with the “fall of the republic”…
I am the artist, Chris Drew, and I am presently on a path to bring the Illinois law to a Federal First Amendment test. That is my goal. It is my duty to do this. It is a great risk in the State of Illinois. They are making me their test case to apply this law widely in Illinois to prevent its citizens from critiquing their police. When you think about it, this is a line between freedom and tyranny because if you can’t gather information to back up your story in court and the policeman has more credibility in the court’s eyes, the policeman can lie with comfort and you can not prove them wrong.
http://www.c-drew.com/blog is my Street Artist Adventures blog where the whole story of my struggle to make Chicago more friendly to artists has led to an even greater fight for freedom in Illinois.
C. Drew