Oral Arguments in ACLU Challenge to Illinois Wiretapping Law

Thursday, September 15th, 2011

On Tuesday, the U.S. Court of Appeals for the 7th Circuit heard oral arguments in the ACLU’s challenge to the Illinois wiretapping law, which essentially makes it a felony to record on-duty police officers. The arguments produced some head-scratching comments from Judge Richard Posner, who is often described as libertarian—or at least as possessing some libertarian leanings.

“If you permit the audio recordings, they’ll be a lot more eavesdropping.…There’s going to be a lot of this snooping around by reporters and bloggers,” U.S. 7th Circuit Judge Richard Posner said. “Yes, it’s a bad thing. There is such a thing as privacy.”…

“The gangs who are interested in monitoring each other will rejoice in your case,” Posner told the ACLU.

He said gang members who want to snoop on each other could start secretly recording conversations and say they’re protected because they were taping suspected police informants.

Reason’s Jacob Sullum comments:

They could say that, but they’d be wrong, since they would be recording private citizens in private places, as opposed to public servants in public places. There is indeed “such a thing as privacy,” but an arbitrarily defined legal right to privacy that is unmoored from property rights and contract rights is a menace, as this case shows. Even worse is a concept of privacy that offers less protection to ordinary citizens than it does to police, who have far more power to abuse.

Posner, by the way, has been fairly skeptical of personal privacy protections in the past, and in fact has argued that the law should begin with a presumption against them. So it’s hard to understand why he’d not only invoke privacy here, but suggest it ought to overcome some significant First Amendment concerns.

It’s also important to keep in mind why this law was passed, and how it has been enforced. The Illinois law originally included the same “reasonable expectation of privacy” provision included in the wiretapping laws of all other all-party consent states, save for Massachusetts. But in the 1980s, the state’s supreme court overturned the conviction of a man who had recorded two cops from the back of a police cruiser, finding—as other courts have—that on-duty cops have no such expectation of privacy. It was in response to that ruling that the Illinois legislature amended the law to remove the privacy provision.

The law as written doesn’t single out cops for protection, but if anyone has since been arrested or charged in Illinois for recording in a public setting someone who wasn’t a police officer, I’m not aware of it. (It may have happened, but it hasn’t happened often.) The police only seem interested in enforcing the law when they’re the ones being recorded. Now here may well be non-pernicious reasons for this. I’d imagine that your average citizen in Illinois who doesn’t wear a badge either doesn’t know that it’s illegal for someone to record him in public without his permission, isn’t aware when he is being recorded, or doesn’t particularly care enough to file a criminal complaint.

But as enforced, the law does exactly what Sullum rightly argues it shouldn’t. It gives an extra set of privacy rights to police officer that aren’t afforded to citizens. (If I’m not mistaken, the law also includes an exception that allows police to record citizens without their permission if it’s done as part of an investigation.)

As for Posner’s fears of “reporters and bloggers snooping around,” isn’t keeping government officials transparent and accountable  kinda’ the main reason why we have a free press in the first place? Because we want to encourage that sort of thing?

This is a state where we now know police in its largest city were torturing people in interrogation rooms for more than two decades. It’s a state that in recent years has seen numerous scandals involving police brutality captured on surveillance video—video that has on several occasions contradicted police reports. In Chicago, we also know that complaints about police abuse aren’t taken all that seriously. Given that history, it’s hard to contemplate how a judge like Posner could think a citizen not only has no right to preserve a recording of his own encounters with cops, but could defend a law subjecting anyone who does to a felony charge and up to 15 years in prison.

CORRECTION:  Actually, the Illinois law does single out law enforcement officials for special treatment. It’s a Class 1 felony to record them, and a Class 3 or 4 (depending whether it’s a first offense) for recording anyone else. Which of course makes the law even worse.

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36 Responses to “Oral Arguments in ACLU Challenge to Illinois Wiretapping Law”

  1. #1 |  Dr. Q | 

    I’ll bet those “gang members” Posner is referring to are real intimidated by the eavesdropping statute, just like they’re intimidated by all the other laws they break.

  2. #2 |  Rogue Medic | 

    We should hope that he was just asking the devil’s advocate questions to make sure that he was not missing something.

    We won’t know until the decision is available.

    .

  3. #3 |  Radley Balko | 

    We should hope that he was just asking the devil’s advocate questions to make sure that he was not missing something.

    That’s a fair point.

  4. #4 |  ChicagoSucks | 

    I’m on the edge of my seat

  5. #5 |  Z | 

    “Posner, by the way, has been fairly skeptical of personal privacy protections in the past, and in fact has argued that the law should begin with a presumption against them. So it’s hard to understand why he’d not only invoke privacy here, but suggest it ought to overcome some significant First Amendment concerns.”

    Ummm because he digs libertarianism as long as its the little people f’ing each other up but not when it comes to cutting back the power of the state machinery he is a part of?

  6. #6 |  Jesse | 

    The statements as written here don’t sound like “devil’s advocate” type inquiries. He makes concrete statements, “It’s a bad thing.”

    Sometimes I wonder if judges simply relish in their power to obfuscate issues and confuse people when something seems pretty open-and-shut on its face.

  7. #7 |  Pablo | 

    I think judges lead pretty sheltered lives. Once you are a federal judge for a few decades, as Posner has been, it’s easy to lose sight of what life is like for the average citizen.

  8. #8 |  Ron | 

    As a former cop I feel the law needs to be corrected and the public should be able to record officers. It’s good all round. Keeps cops focused and professional and I would love to share video of many of those I dealt with on the streets.

  9. #9 |  Dave Krueger | 

    “He said gang members who want to snoop on each other could start secretly recording conversations and say they’re protected because they were taping suspected police informants.”

    LMAO! Yeah, I’m sure that gangs are going to know or care what the law is when they target other gangs.

    “First we’re gonna snoop around until we find out who’s been snitching on us and then we’re gonna blow his ass away! Oh, wait, the snooping might violate their privacy. Guess we’ll just have to skip that part.”

  10. #10 |  SJE | 

    Posner is considered one of the best US legal minds in the last 100 years, and has an astonishing record of original scholarship. Posner has been pretty consistent in his libertarian bent, so much so that the GOP would not nominate him to the SCOTUS because he is not “conservative” enough. I note that his libertarian bent is strongest where money or property rights are involved, and I am not aware of his opinion regarding personal liberties.

  11. #11 |  Ben | 

    @9 – If he is such a brilliant legal mind, then why can’t he grasp the concept that the ACLU is not arguing for the right of people to go snooping around and surreptitiously record people in private. He seems to not even comprehend the idea that this is about recording public actions in public places.

  12. #12 |  Dave Krueger | 

    You are clearly not seeing this from a cops-are-our-friends perspective. Furthermore, cops are the good guys, so there is no reason to record them. The only reason someone would want to record them would be to use audio/video trickery to make them look bad or to to capture some teeny tiny discrepancy in their report so as to impugn their testimony.

    A cop’s job is hard enough without them having to worry that everything they say and do is going to be subject to second guessing after the fact. A criminal isn’t any less guilty just because some cop beat him into a bloody lump of pureed muscle and bone.

  13. #13 |  SJE | 

    #10: Ben- your impression is based on oral arguments, where he could have been playing devils advocate, or making sure that the ACLU was making a strong case. It is not the decision of the court, or that of the 2 other judges.

  14. #14 |  Ben | 

    @12 – If he’s going to play devil’s advocate, he should at least present an argument against what the ACLU is actually advocating.

  15. #15 |  SJE | 

    Oral argument is the only time that the judges have to ask questions that were not raised in the briefs. If I was sitting in Posner’s chair, why would I go through the arguments already in the brief. Instead, use the opportunity to raise arguments that might be argued before the supreme court, but are not yet before the 7th Circuit bench.

    So, because Posner raised these issues (which concern broader policy considerations), it is easier for the court to consider them in its decision.
    Broader policy considerations are vital when considering overturning a statute, because the Supreme Court is pretty clear that such broader policy considerations are those for the legislature and not the courts to make. Overturning them requires a very clear constitutional violation.

    By showing that these policy considerations are not harmed by overturning the law (or by showing how the law could be modified to fit within the constitution), the 7th Circuit makes its decision stronger against the statists on the Supreme Court.

  16. #16 |  H4 | 

    I am an attorney. You should not be surprised by weird questions from a judge during oral arguments. Often, judges will ask questions in a way that makes the question he/she is asking appear ridiculous, and give a chance to the attorney to actually destroy the straw argument, which might often be invoked by opposition. My guess is this is what Posner was doing. This man is not dumb. Given his track record of published decision, he tossed up a straw man to be torn down.

  17. #17 |  Ben | 

    I am also an attorney, and frankly, stating that you are as some sort of claim of authority comes across as patronizing. I am well aware of how the process of oral argument proceeds.

    What I am saying is that Posner’s statements aren’t fleshing out anything. They are complete non-sequiturs, that have no rational relationship to the case at hand.

  18. #18 |  Steve Verdon | 

    We should hope that he was just asking the devil’s advocate questions to make sure that he was not missing something.

    That’s a fair point.

    Keep in mind a couple of points.

    1. Power corrupts.
    2. The State protects its own.

    Given these, the notion he is asking “Devil’s advocate” questions is less compelling…it would be nice to see more of the context though.

  19. #19 |  Steve Verdon | 

    SJE,

    You really should click through the link behind “fairly skeptical” regarding Posner and privacy. It is rather disconcerting.

    In fact…SJE, post your real name, address and phone number here. No? Maybe Posner isn’t so smart.

  20. #20 |  mad libertarian guy | 

    Given that history, it’s hard to contemplate how a judge like Posner could think a citizen not only has no right to preserve a recording of his own encounters with cops, but could defend a law subjecting anyone who does to a felony charge and up to 15 years in prison.

    No, it’s not hard to contemplate. Posner’s a statist and has an invested interest in upholding the primacy of the state.

    It’s really that simple.

  21. #21 |  Jeremiah | 

    The reports of Posner’s libertarianism have been greatly exaggerated.

  22. #22 |  just passin' thru | 

    Posner is a federal judge, who in a case like this, gets to impose federal law (if it exists) over state law. Is there a federal privacy law, statutory or constitutional? I am aware of Roe v Wade, which is premised on an _unwritten_ privacy protection (which makes Roe v Wade susceptible to an overturn by the Supremes) in the future. Are there any other privacy protections?

    I’d think it likely that the judge was asking the proponents and opponents to justify their positions under federal law. The recent 7th (?) circuit case permitting the public recording of police required a chain of logic that tied back to the constitution, not any particular congressional law.

    Overturning a state law on federal constitutional grounds is a pretty rare occurrence, and the judge would prefer to (a) let it stand, or next (b) overturn it on statutory grounds if at all possible.

    When the judge makes those comments, the advocates should assert that the recorded events occurred in a public forum, and the public forum exception to the law is all they seek.

  23. #23 |  Jeremiah | 

    In a 2001 Reason interview, Posner said:

    “Yes, I regard myself as a libertarian, in a sense that has virtually disappeared from the American public scene. It is basically the Millian sense, but without buying into all of Mill’s views. Apart from the fact that he was writing almost 150 years ago, his thought isn’t entirely consistent. He had a lot of specific views that seem very strange to me. But I think of myself as someone who believes that the government should intervene only where private activity is palpably harmful or where there are external benefits. For example, an educated population benefits the society as a whole. You benefit from the fact that other people are educated, just as you benefit from the fact that other people subscribe to the telephone service. Where there are external benefits, there is a case for government intervention.

    “The reason libertarianism doesn’t have much support anymore in the U.S. is that liberals, as they describe themselves today, believe in freedom of personal behavior — sexual behavior and so on — but want to regulate markets, whereas the conservatives want markets to be free but seek to regulate people’s personal behavior. The libertarian doesn’t like either form of regulation, unless it meets pretty tight criteria: The target of government intervention has to be an activity that either imposes external costs or creates external benefits. That position, I think, has very little appeal.”

    But Posner spun out of the libertarian orbit long ago. This is current from Mises Institute:

    Posner Gets It Wrong on Macroeconomics
    http://liten.be//Cp7wv

  24. #24 |  SJE | 

    Steve Verdon: I do not post my name because my views may not be approved by my employer, a large law firm in Washington. If I did not have to work for a living, it would be a different story.

  25. #25 |  SJE | 

    Besides: why are some of you so touchy about this? I am not advocating for Posner’s position, or for the State of Illinois, and completely support the ACLU in this suit. What I am saying is that you can’t judge a judge’s ruling by his comments during oral argument.

  26. #26 |  HONORYOUROATH | 

    He doesn’t sound very libertarian to me! Good grief why not just outlaw privately owned video cameras in Illinois. It seems,according to Posner, that every time a private citizen pushes the record button they could be committing a felony, facing 15 years in prison.

  27. #27 |  CyniCAl | 

    “… it’s hard to contemplate how a judge like Posner could think a citizen not only has no right to preserve a recording of his own encounters with cops, but could defend a law subjecting anyone who does to a felony charge and up to 15 years in prison.”

    Really? Sometimes I get the feeling that you’re pulling our collective leg, Radley.

  28. #28 |  TGGP | 

    I hadn’t heard Posner was libertarian, just that he thinks judges should make decisions that are economically efficient (he’s a big fan of Oliver Wendell Holmes, whom most libertarians hate). When neo-nazi (and federal agent provocateur) Hal Turner was calling for Chicago judges to be executed for their decision upholding gun control, Posner was one of the judges named.

  29. #29 |  CyniCAl | 

    Same TGGP that posts at Unqualified Reservations? Good to see you here.

  30. #30 |  JC | 

    The government attorney got it a lot worse attempting to justify the “incremental” protection given by the Illinois statute. Take a listen after around fifteen minutes: http://www.ca7.uscourts.gov/tmp/BB1DR4JA.mp3

    I’m guessing this particular law gets the boot, at least based on the very limited foresight that the oral argument brings.

  31. #31 |  SJE | 

    TGGP: so a wacko who threatens Federal judges is the person we should be looking to for a guide as to the judge’s judicial philosophy?

  32. #32 |  Steve Verdon | 

    Steve Verdon: I do not post my name because my views may not be approved by my employer, a large law firm in Washington. If I did not have to work for a living, it would be a different story.

    I know why you didn’t but that is precisely my point (and it seems clear you did not read the link). Posner says privacy is bad because now here you are running around posting things your employer might not like and they should have the opportunity to review your comments and take the appropriate actions. That you don’t like that means you are hiding something…being dishonest and that is a social bad, according to Posner. Posner also says he likes to protect his own privacy and values it. The whole comment is rather schizophrenic, IMO.

    So, to tell us he is a great legal mind makes me think you don’t really know what those words mean or are ignorant of some of Posner’s more unusal positions.

    Besides: why are some of you so touchy about this? I am not advocating for Posner’s position, or for the State of Illinois, and completely support the ACLU in this suit. What I am saying is that you can’t judge a judge’s ruling by his comments during oral argument.

    I’m not, I’m also looking at the link Radley posted and I’m also considering other factors as contained in my initial post and I’m less sanguine about the implications of Posner’s ultimate ruling. You are ignoring, in a rather lawyerly fashion, the other information presented in the thread and original post. Good job.

  33. #33 |  Sooner or Later, People Will Accept the Fact That Secession Is the Only Way Out of Ever-Increasing Tyranny » ReasonAndJest.com | 

    [...] Radley Balko: Oral Arguments in ACLU Challenge to Illinois Wiretapping Law [...]

  34. #34 |  Dominique Sherter | 

    To listen to the actual recordings of the Oral Arguments: Facebook group Free Mike Allison. http://www.facebook.com/groups/208850392507981/?view=permalink&id=215981271794893

  35. #35 |  Dominique Sherter | 

    For a recent, non-hypothetical example of the consequences of prosecution of non-surreptitious audio recording of police misconduct please read about the case of Nikita Biddle – jailed for 80 days. http://www.c-drew.com/blog/2011/03/14/1494/

  36. #36 |  Nikita | 

    I hope that the ACLU can win their challenge in the courtrooms so that my conviction for eavesdropping on the police can be overturned.

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