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.
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.