Illinois ACLU To Challege State Wiretapping Law

Friday, August 20th, 2010

I’ve written a couple pieces now about how the Illinois wiretapping law is the toughest in the country, and has been used to charge people who record on-duty police officers with a felony punishable by 4 to 15 years in prison (for each recording). This week, the Illinois ACLU filed a challenge to the law.

The ACLU argues that the act violates the First Amendment and has been used to thwart people who simply want to monitor police activity.

The head of the Chicago police union counters that such recordings could inhibit officers from doing their jobs.

In its lawsuit, the ACLU pointed to six Illinois residents who have faced felony charges after being accused of violating the state’s eavesdropping law for recording police making arrests in public venues.

Adrian and Fanon Perteet were passengers in a car at a DeKalb McDonald’s drive-through in November when police moved in. Officers suspected that the car’s driver was under the influence, according to the brothers.

Fanon Perteet, 23, said he was scared. Past experiences with police had left him suspicious of the officer’s motives, he said. So he pulled out his cell phone and turned on the video camera, which also records sound.

“I felt obligated to record so nothing happened,” said Perteet, an event planner.

When the officers realized they were being taped, Perteet was arrested and taken to a squad car. Adrian Perteet, 21, a student at Northern Illinois University, then took out his cell phone and started recording his brother’s arrest.

Both brothers were charged with violating the eavesdropping act, a felony, their lawyer Bruce Steinberg said. They pleaded guilty in April to attempted eavesdropping, a misdemeanor, to avoid felony convictions, Steinberg said.

The Perteets were ordered to apologize to the officers. They were given back their cell phones, which had been seized by police, but told to delete the recordings…

Mark Donahue, president of the Fraternal Order of Police in Chicago, said he believes the state’s eavesdropping law is a good one. Allowing people to make audio recordings of arrests “could potentially inhibit an officer from proactively doing his job,” Donahue said.

Illinois originally included a provision in its law that for a recording to be illegal, the offended party must have had a reasonable expectation that the recorded conversation was private. Every other state but Massachusetts has a similar provision. But in 1994 the Illinois legislature amended the law to delete that provision, in direct response to a ruling by the Illinois Supreme Court throwing out the conviction of a man who recorded two police officers from the back of their patrol car after he’d been arrested.

In 2006, Illinois State Rep. Chapin Rose (R-Charleston) proposed an amendment to the law explicitly making it legal to record on-duty police, but the amendment died in committee.

It will be interesting to see what the courts say about the constitutionality of the law. But regardless of whether it’s permitted by the Constitution, the law is wrongheaded public policy. The Illinois legislature could take care of this tomorrow by passing a bill similar to the one introduced by Rep. Rose.

Digg it |  reddit |  del.icio.us |  Fark

45 Responses to “Illinois ACLU To Challege State Wiretapping Law”

  1. #1 |  Andrew S. | 

    But regardless of whether it’s permitted by the Constitution, the law is wrongheaded public policy. The Illinois legislature could take care of this tomorrow by passing a bill similar to the one introduced by Rep. Rose.

    But the police are against that, Radley. So how would you expect these poor, poor politicians to be re-elected if they go against the police unions? You have to focus on what’s important here!

  2. #2 |  Rhayader | 

    +1 for the ACLU. One of our country’s more valuable organizations, despite their occasional issues with consistency.

  3. #3 |  Waste93 | 

    Not a fan of the ACLU but in this case good for them. Does anyone know if officers in IL have dash cams like most agencies? Is so how do they get around this law or are they exempt?

  4. #4 |  aw2pp | 

    Not sure what the problem is, LEO’s. After all, if you aren’t doing anything wrong, if you are just doing your job, what’s to hide?

    (Seems like I have heard that argument before, but I just can’t pin it down…)

  5. #5 |  Cyto | 

    I cannot understand how any jurisdiction can make it illegal to record something you can hear with your own ears. If I can legally tell people that you stated “I like White Castle burgers”, the only rational reason to outlaw my playing a tape of the same quote is to preserve your ability to lie about the conversation. That doesn’t really make any sense.

    With video, if I am watching my brother get arrested for DUI, I can legally testify to what I saw and heard in court. The officers can testify as to their version. Without a video recording, their version is going to be believed every time. With a video, I have backup for my version of events that can outweigh the presumption of veracity that goes with the badge. The only even theoretically possible rational for outlawing the recording is to preserve the ability of the officer to lie about the encounter. The difference here is that he’s not lying about liking sliders…. he’s lying to put you in jail. Big, big difference. If anything, the law should be more permissive about recording police executing an arrest or questioning suspects.

  6. #6 |  Michael Pack | 

    Just what we need.More nonviolent people in prison.

  7. #7 |  Nando | 

    Mark Donahue, president of the Fraternal Order of Police in Chicago, said he believes the state’s eavesdropping law is a good one. Allowing people to make audio recordings of arrests “could potentially inhibit an officer from proactively doing his job,” Donahue said.

    Mr. Donahue, please provide one example of an action or conversation a Cop might have with a “civilian” that he wouldn’t otherwise have/do if he weren’t being recorded. My guess is that if the cop is doing everything by the book and in a legal manner then there should be no difference in how the cop acts (with or without a camera present).

  8. #8 |  Rhayader | 

    Hah, yeah Nando — if being recorded “inhibits an officer from proactively doing his job,” one must wonder what the exact nature of said job is.

  9. #9 |  Waste93 | 

    ‘ the only rational reason to outlaw my playing a tape of the same quote is to preserve your ability to lie about the conversation. That doesn’t really make any sense. ‘

    We are talking about IL. The state where Chicago is. It was amended to protect politicians.

  10. #10 |  jppatter | 

    #3 | Waste93 |
    Does anyone know if officers in IL have dash cams like most agencies? Is so how do they get around this law or are they exempt?

    Haven’t you heard? Police are exempt from all laws. They are above the law.

  11. #11 |  Dante | 

    “The Illinois legislature could take care of this tomorrow by passing a bill similar to the one introduced by Rep. Rose.”

    They could, but they won’t. Why? Money and Power.

    Each and every time our government is forced to choose between serving the citizens or lining their own pockets/enhancing their own power, which way do they go? They shaft the citizens and load up with ill-gotten gains.

    And the people have no say. We only get to pay for it all.

  12. #12 |  Waste93 | 

    jppatter,

    Given, however if the legislature put in an express exemption for LEO I was going to wonder if the ACLU would also challenge the law as a violation of Equal Protection also.

  13. #13 |  EH | 

    The head of the Chicago police union counters that such recordings could inhibit officers from doing their jobs.

    Their job is to lie?

  14. #14 |  EH | 

    Not sure what the problem is, LEO’s. After all, if you aren’t doing anything wrong, if you are just doing your job, what’s to hide?

    (Seems like I have heard that argument before, but I just can’t pin it down…)

    It’s still a shitty argument.

  15. #15 |  kino | 

    what it inhibits , is a police officers ability to violate a citizens civil rights !

  16. #16 |  Leon Wolfeson | 

    Shh. Don’t answer the question, ask it to him. If he doesn’t answer in detail, keep asking. Don’t let politicians say this sort of stuff and leave implications hanging, make them answer it in detail, so everyone KNOWS what they think.

  17. #17 |  Highway | 

    So I think it’s pretty clear that ‘officers proactively doing their jobs’ means “Nab ‘em, lock ‘em up, and figure out what to charge them with later.” And if they can’t find anything to charge them with, then the prosecutor just says “We’re declining to press further charges” and *woo!* he looks like a super nice guy!

    And of course the cop apologists and Just World believing idiots go on in their fantasy world of ‘Well, if they got arrested, they MUST have done something wrong!”

  18. #18 |  Helmut O' Hooligan | 

    #3 Waste 93:
    “Does anyone know if officers in IL have dash cams like most agencies? Is so how do they get around this law or are they exempt?”

    As an Illinois resident who has spent a fair amount of time around IL police agencies (due to internships and my current job), I can tell you that almost any IL police department of any size will equip its squad cars with dash cams. Also, police agencies are supposed to record interrogations of individuals suspected of homicide.

    I don’t know how law enforcement is “exempt” in this case, but the stated purpose of both types of recordings is to protect suspects and officers alike. I think dashcams and recording of interrogations are great ideas. I also think that recording on duty police and other public officials should be totally legal, and perhaps encouraged in some communities.

  19. #19 |  Gonzo | 

    The thing that gets me here, aside from all the rest of it of course, is that the defendants were ordered to apologize to the cops as part of the plea bargain. Such delicate sensibilities they must have.

    Does anyone know what the sentence for the misdemeanor pleas were?

  20. #20 |  Dave Krueger | 

    What pisses me off about stuff like this is that it’s become a foregone conclusion that the responsibility for upholding the Constitution has been completely relegated to the courts. Legislators, who are almost universally sworn to preserve and protect the state and/or federal constitutions, routinely do just the opposite. They are in fact a constitution’s biggest enemy. Constitutional restrictions are seen as a nuisance. A hindrance to getting the job done. Antiquated. People are meant to be ruled and citizens should respect authority.

    And citizens, who are supposed to hold legislators accountable and keep their excesses in check, couldn’t care less what happens in their state capitols unless 1) it involves something that directly and significantly causes them grief or 2) looks like a handout. And whether they even care about the first one is questionable.

    Democracy sounds like a great theory, but before we’ll ever know if it can work, we will have to find a population that gives a shit. We just aren’t that far along in the evolutionary process yet.

  21. #21 |  Waste93 | 

    Helmut,

    Thanx for the info. I work in law enforcement also and figured they would have dash cams and for interrogation. I’m curious how they are getting around the law. I’m betting they have an exemption to the law which would give the ACLU another avenue to attack the law which is what I was hoping for.

  22. #22 |  Dave Krueger | 

    One has to wonder how anyone can suggest with a straight face that police recordings are a more reliable form of evidence because they have all the trappings of “chain of evidence” rules. I mean, it’s not like law enforcement is exactly a disinterested party.

    Isn’t that just about as stupid as giving the government sole responsibility for interpreting how the Constitution restricts its powers?

  23. #23 |  Yizmo Gizmo | 

    Let’s cut to the chase. Police want
    to prevent people from recording them because
    deception and intimidation are a big part of their Modus operandi. If they control the media, they control the case. They can lie and intimidate all they want if no one is monitoring them.
    Eavesdropping? Wiretapping? These Gov’t goons should be prosecuted
    for systematically and willingly misapplying these laws.
    Reminds me of the Lew Rockwell guy, a defense atty, who got
    charged with “prowling,” and then “idling” for being in his car
    on the internet near a school at night…
    They record us every time the pull us over… but when
    we do it to them we get sent to the Big House?
    Isn’t that when it’s time to get out the pitchforks and torches
    and commence la Revolucion.

  24. #24 |  Rhayader | 

    @Dave Kreuger:

    What pisses me off about stuff like this is that it’s become a foregone conclusion that the responsibility for upholding the Constitution has been completely relegated to the courts.

    Yeah that observation is dead-on. Perhaps the courts are seen as excessively “activist” because they end up carrying the dead weight from the other two branches, who seem to have zero interest in upholding their most basic job duties.

  25. #25 |  Jim | 

    Here is Mr. Donahue’s email addy: mdonahue@chicagofop.org

    Please send him a few thousand emails asking him if he is high, stupid, corrupt, or all the above.

    Jim

  26. #26 |  Steve Verdon | 

    With video, if I am watching my brother get arrested for DUI, I can legally testify to what I saw and heard in court. The officers can testify as to their version. Without a video recording, their version is going to be believed every time. With a video, I have backup for my version of events that can outweigh the presumption of veracity that goes with the badge.

    Now you know why they changed the law. Can’t have the peasants making trouble for the ruling class’ enforcers now can we?

    Please send him a few thousand emails asking him if he is high, stupid, corrupt, or all the above.

    All of the above, durrrr.

  27. #27 |  Waste93 | 

    Rhayader,

    Many courts have become activist. Making up rights that appear no where in the Constitution and ignoring ones that do. This doesn’t excuse the other two branches for ignoring their duties. Frankly all three branches have overreached amongst themselves and in regards to the people.

    If the three branches are not bound by the limits imposed on them by the Constitution, then soon the people will not feel bound by the limits imposed upon them by those three branches.

  28. #28 |  Kukulkan | 

    #3 | Waste93 |
    Does anyone know if officers in IL have dash cams like most agencies? Is so how do they get around this law or are they exempt?

    My googling of Chicago and Illinois dashcams (and related searches) found several videos from dashcams, but there was no audio. Although not conclusive, I think this suggests that Illinois police departments are complying with the law by disabling the ability to record audio from their dashcams. I’m not sure why our words are entitled to greater privacy protection than our actions in Illinois.

    Please also note that not all police departments record interviews/interrogations. In fact, some departments are positively opposed to this practice. I do not have any information regarding Illinois procedure with respect to recording interrogations.

  29. #29 |  KristenS | 

    Went to the IL ACLU web site to donate, but you canonly donate to the national organization. Fuck that noise. I don’t trust a large bureaucracy like the ACLU to get the money to Illinois.

  30. #30 |  EH | 

    #28: Correct, the issue here in these cases has (100%?) been about the audio since that’s what the aged laws cover.

  31. #31 |  jeff | 

    The ray of light in all of this is that people like Radley Balko and Carlos Miller keep this sort of bullshit in the public view and force public responses from the proponents of the police state.

    Their responses are usually so self serving and ludicrous that it invariably wakes up a few more citizens, previously oblivious to the incremental erosion their basic rights. The public responses to this crap are encouraging and it makes it more difficult for it to continue.

    Nice work.

  32. #32 |  delta | 

    “One has to wonder how anyone can suggest with a straight face that police recordings are a more reliable form of evidence because they have all the trappings of ‘chain of evidence’ rules. I mean, it’s not like law enforcement is exactly a disinterested party.”

    Moreover, if that were the case, then they shouldn’t be afraid of it being presented to a court and weighed appropriately. It’s not like cops should be prohibiting stuff in the street because it might create inadmissible court documentation.

    Lots of illogic there.

  33. #33 |  croaker | 

    @25 My vote would be insane and evil

  34. #34 |  Hamburglar007 | 

    The hamburglar just experienced NYCs stop and frisk policy about half an hour ago. The hamburglar was not fucking pleased, not one bit. God forbid someone wants to go outside to have dinner on these dangerous streets

  35. #35 |  Cyto | 

    Jeff: Yes, all 87 of us public that view the work of Balko and Miller are mobilized. Now, if each of us will just go find 2.4 million friends and convince them to join us….

  36. #36 |  Michael Chaney | 

    Balko has good readership – far more than who post here. But this subject also gets quite a bit of mention over at Instapundit, which has a huge readership. It’s getting out there.

  37. #37 |  Justthisguy | 

    This is what happens when you let Irish Papists and German socialist Statists into a country founded by British Protestants.

  38. #38 |  Gerald A | 

    We all know how the book ( the arrest report) is always better than the movie ( citizens video). How can you expect a LEO who spent all the time and effort perfecting their creative report writing skills to be undermind by some one wtih a $20 cell phone?

  39. #39 |  Bob | 

    Here’s my take: It’s all about confessions.

    From the rank and file police point of view, this means it’s all about plausible deniability. As long as you’re not recorded, you can spin the encounter any way you want.

    A while back, a landmark case rocked the cop world: Miranda. Check out this report:

    http://www.ncpa.org/pub/st218?pg=4

    Note the drop in clearance rates. The police live by Clearance rates. That’s how they’re judged.

    The important data is in the section “Confession rates and Miranda”

    The important data here is the percentage of crimes cleared by confession. Look at the numbers. Pre-Miranda, as many as 70% of crimes were cleared by confession. Only in one location do they drop below 40%

    Confessions work, the cops know this. As such, they spend the bulk of their efforts to get them.

    This means they fudge the facts, bend the law, do some “Old fashioned police work” (wink wink) to get that warrant so they can get the dope on someone to get a confession out of them. (Note: Agreeing to a conveniently placed lesser charge as a Plea Bargain is essentially the same thing)

    Transparency is the antithesis to “Old fashioned Police Work”. It exposes the police’s sheer inability to actually investigate crimes with science instead of social engineering.

    If Transparency was at 100%? It would be nearly impossible for the police to solve the vast majority of crimes. Someone gets hit over the head and robbed? The Police would be “Fuck, we don’t know, who do you think we are? Gil Grissom?” Without transparency, the police are free to guess at who could have done it, then charge the first one they can get to confess.

  40. #40 |  Bob | 

    I should clarify that last statement:

    If Transparency was at 100%? It would be nearly impossible for the police to solve the vast majority of crimes. Someone gets hit over the head and robbed? The Police would be “Fuck, we don’t know, who do you think we are? Gil Grissom?” Without transparency, the police are free to guess at who could have done it, then charge the first one they can get to confess.

    It would be nearly impossible for the Police to solve crimes thus because they are too committed to social engineering techniques designed to get confessions than science based approaches. Science is hard. Jacking a confession out of a low IQ suspect with the Reid Technique is a LOT easier.

  41. #41 |  jlaw | 

    I’m a LEO and I say record away ! I dont have anything to hide. I know exactly why this law is in place, so bad cops and politicians can say and do whatever they want. Most cases a recording will make the offender look like an idiot so go ahead record away and in the case that it catches an idiot on the other side then so be it dont be an idiot and you wont have to worry about whats on the tape. However having said all that I do suspect that the problem is in the authentication of such recordings. Police can document when where and how the recording was made and usually it can be determined if its been altered and it can be reviewed in its entirety ! The same can not be said for private recordings !

  42. #42 |  Bob | 

    jlaw,

    Cute hypothesis, but how many people possess the technical ability to create an altered video record that could actually go undetected?

    Hint: None.

    At best, the video could be time cropped to only show the beating part of the story. Then, when that’s all over the internet, you all look like goons. You don’t want to look like a goon? Tell your friends to stop beating people. Problem solved.

  43. #43 |  John A | 

    Just how “private” is a government employee IN UNIFORM (not undercover, or even as with detectives often in mufti on duty) and possibly driving a vividly-marked vehicle?

    But “expectation of privacy” can have odd twists. I recall a case in which officers stoped a vehicle for traffic violation. One officer noticed a handgun protruding from under the driver’s seat, so driver and passenger were ordered out. When neither coukd provide license info for the weapon (I hope not to open that issue, but will take the risk) the passenger compartment was searched. Then the officers asked for keys to the trunk: upon being refused, they forced the trunk open: this was OK, reasonable suspicion. In the trunk was a locked briefxase same thing, refused keys to open it they broke it open, and still OK. The trunk also had a paper bag, with the top rolled over – and here is where “excpectation of privacy” coupled with “secure container” trumped “reasonable suspicion” and the evidence found in the bag was not allowed in court. A lawyer explained this to me, but danged if I can remember the reasoning…

    One point, though, for LEOs – it has been settled that police are allowed to lie during questioning, but playing that out before a jury might not sit well…

  44. #44 |  Bob | 

    John A:

    I believe it’s because the probable cause only involves searching for firearms. The bag could be lifted to see if it’s got a heavy object in it, whereas the case is not so apparent.

    Had the bag felt heavy, like a several pound metal object was in it, then I believe it could have been opened. But if it just contained drugs, then no, a warrant would be required.

    But… I’m not a lawyer or an expert on fourth amendment rights, so I could be way off base.

  45. #45 |  BoogaFrito | 

    Cute hypothesis, but how many people possess the technical ability to create an altered video record that could actually go undetected?

    Hint: None.

    At best, the video could be time cropped to only show the beating part of the story.

    Then it’s even. The same video taken by the cops will show everything but the beating.

Leave a Reply