Win.

Tuesday, May 8th, 2012

The 7th Circuit U.S. Court of Appeals has struck down the onerous Illinois wiretapping law.

The ruling from the 7th Circuit U.S. Court of Appeals in Chicago is the strongest blow yet to the law, which is one of the strictest in the country and makes it illegal for people to audio record police officers in public without their consent.

The ruling follows last month’s announcement by Chicago officials that they would not enforce the law during the May 20-21 NATO summit when potentially thousands of people armed with smart phones and video cameras are expected to demonstrate in the city.

The ruling from the appeals court stems from a lawsuit filed in 2010 by the American Civil Liberties Union of Illinois. The suit sought a preliminary injunction barring Cook County prosecutors from enforcing the law.

A federal judge denied the request, prompting the ACLU to appeal to the 7th Circuit. In its ruling today, the appeals court agreed with the ACLU, saying, “The Illinois eavesdropping statute restricts far more speech than necessary to protect legitimate privacy interests.”

The ACLU of Illinois welcomed the ruling. Its legal director, Harvey Grossman, said that the “widespread accessibility of new technologies make the recording and dissemination of pictures and sound inexpensive, efficient and easy to accomplish.”

“In order to make the rights of free expression and petition effective, individuals and organizations must be able to freely gather and record information about the conduct of government and their agents – especially the police,” Grossman said in a statement.

There was one dissent. And with it, I think it’s officially time to stop pretending that Judge Richard Posner has any kinship with libertarians.

Judge Richard Posner dissented, saying the legislature in 1994 might have had good reason for requiring two-party consent — a higher standard of privacy than other states — even when it comes to recording police officers on public streets: “A person who is talking with a police officer on duty may be a suspect whom the officer wants to question; he may be a bystander whom the police are shooing away from the scene of a crime or an accident; he may be an injured person seeking help; he may be a crime victim seeking police intervention; he may be asking for directions; he may be arguing with a police officer over a parking ticket; he may be reporting a traffic accident,” Posner wrote. “Police may have no right to privacy in carrying out official duties in public. But the civilians they interact with do.”

Or it might be the alleged victim of sexual assault by a police officer, attempting to document the fact that the internal affairs cops to whom she’s trying to report the incident are bullying her into dropping her complaint. Posner  apparently thinks she should go to prison for that.

Keep in mind, this is the same Posner who is unconcerned with warrantless cell phone searches, and who in just about every other context seems to believe that privacy is dead.

Just not when you’re recording on-duty cops.

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22 Responses to “Win.”

  1. #1 |  David | 

    Over/under on time until the ruling is flagrantly defied on the streets? I say twelve minutes.

  2. #2 |  Eric | 

    Posner’s dissent (if you Google for the 7th Circuit the opinion is free on their site) is oddly focused on the people talking to the police rather than the police themselves. He spends several paragraphs arguing about why an informant or a victim who is cooperating with police may seek privacy from a crime reporter or 3d party who seeks to record a conversation. But if that’s an issue, it’s a tiny one compared to police refusing consent when they are being recorded by the person they are interacting with, and then arresting that person for felony “eavesdropping.”

    The dissent even acknowledges that “Police may have no right to privacy in carrying out official duties in public.” But then it throws that away by citing the public’s right to privacy and assuming that is generally in play.

    Posner is a bright guy, so he’s either being intentionally obfuscatory here or he is missing the point in a big way.

  3. #3 |  Stephen Tower | 

    Posner also thinks we should not interfere with poor people’s freedom of contract to sell their organs. Because anyone contemplating selling their kidneys for quick cash is certainly not in an unequal bargaining position, ignoring all the social implications of using the poor to harvest body parts.

    Basically the biggest scumbag in the legal field.

  4. #4 |  SJE | 

    After oral arguments in this case, I recall saying that we should not judge Posner by his oral statements, but by his decision. Now that the decision is out, I am happy to call it a misguided piece of knee-jerk deference to authority. Of course the “saying the legislature in 1994 might have had good reason for requiring two-party consent.” But any infringement of a specifically enumerated constitutional right, like freedom of speech, requires more than a good reason: it must be shown that the measure is specifically tailored to achieve a legitimate purpose and infringes constitutional freedoms no more than is necessary to achieve that purpose. With the numerous examples of corrupt cops using the law to harass innocent citizens, I cannot see how Posner’s dissent holds any water. In other words: what planet are you on?

  5. #5 |  Danny | 

    Posner is rather aptly summed up by the first three letters of his name.

  6. #6 |  ClubMedSux | 

    Stephen, I also don’t think we should interfere with people’s freedom of contract to sell their organs (and while we’re at it, I don’t think that poor people lack the capacity to enter into contracts and therefore there’s no need to differentiate between poor people selling their organs and non-poor people selling their organs).

    As for Posner, I think anybody who’s paid attention should realize that he’s an economic utilitarian whose methodology more times than not leads to an outcome consistent with libertarianism. However, it can also lead to jarringly illibertarian outcomes (like this one).

  7. #7 |  nigmalg | 

    Police may have no right to privacy in carrying out official duties in public. But the civilians they interact with do.

    Proles don’t have an expectation of privacy when in public either. It’s not possible that they do, else accidentally recording them while filming your family trip at Disney World will produce a felon. It’s unenforceable to suddenly categorize public actions as private based on context; it’s a subjective standard based on personal privacy values.

    Lets break down Posner’s concern here.

    1. Isn’t any report to the police supposed to be documented in a incident narrative? At the conclusion of the investigation, doesn’t this document become public?

    2. If a pending criminal investigation is so sensitive, couldn’t the victim make her report in a non-public setting?

    3. Is he saying that public scrutiny of police-citizen communication is protected, unless the citizen objects? Does it retroactively become wiretapping once the objection is made?

    Yikes. Glad he was the dissent.

  8. #8 |  Ron | 

    Okay, I’m lost. Or maybe my legal thinking cap isn’t on right … Posner cites a civilian’s right to privacy as reason to throw the civilian in jail because he/she records the police they’re interacting with? Am I missing something?

  9. #9 |  nigmalg | 

    Okay, I’m lost. Or maybe my legal thinking cap isn’t on right … Posner cites a civilian’s right to privacy as reason to throw the civilian in jail because he/she records the police they’re interacting with? Am I missing something?

    I may be completely off, but I believe Posner was referring to the observer being a third party only.

  10. #10 |  PersonFromPorlock | 

    “Police may have no right to privacy in carrying out official duties in public. But the civilians they interact with do.”

    But the courts have already held that civilians have no expectation of privacy when in public, whatever their right to privacy may be in the abstract. Or are all those dash-cam videos felonies?

  11. #11 |  Larry | 

    Link to ruling: http://www.aclu-il.org/wp-content/uploads/2012/05/Alvarez_ruling.pdf

  12. #12 |  EH | 

    …[T]he legislature in 1994 might have had good reason for requiring two-party consent.

    If so, then there will be a legislative record documenting such, which can be referenced in the course of the case. If it warrants a dissent, why didn’t it warrant investigation?

  13. #13 |  CyniCAl | 

    Aw, c’mon. Lay off Posner. Look at it from his point of view. He loves sucking cop cock.

  14. #14 |  Irving Washington | 

    I started reading Posner before I ever went to law school because he’s a hero to many economists. He actually understands economics in a field that is famous for economic ignorance. It was only after I became a lawyer that I recognized that, whatever his economic genius, he may not really understand the law.

  15. #15 |  SPO | 

    Posner is not a bad judge–he is just wrong on this issue, and, by the way, the case that Illinois’ law is unconstitutional (as opposed to just plain evil) isn’t exactly the easiest one to make.

    There are some truly awful judges. Richard Posner is not one of them.

  16. #16 |  Mike T | 

    #2

    If a crime reporter is trying to record what a witness is saying, and the witness has told the cop they are afraid for their safety then the cop can simply arrest the reporter if they refuse to back off so the witness can give their statements in confidence. Posner clearly didn’t bother to think about the myriad ways in which cops can protect the privacy of people like that without this law.

  17. #17 |  Boyd Durkin | 

    Because anyone contemplating selling their kidneys for quick cash is certainly not in an unequal bargaining position, ignoring all the social implications of using the poor to harvest body parts.

    A straw man is a component of an argument and is an informal fallacy based on misrepresentation of an opponent’s position.

  18. #18 |  Mike T | 

    #3,

    Because anyone contemplating selling their kidneys for quick cash is certainly not in an unequal bargaining position, ignoring all the social implications of using the poor to harvest body parts.

    And what happens when you have a rich SOB who needs a kidney and a poor man can provide him one **right now** for the “low low price” of $500k in cash plus hospital expenses covered? You think most poor people would find that exploitative?

  19. #19 |  Jim | 

    Cops are civilians too. So is the idiot Posner.

  20. #20 |  celticdragonchick | 

    You think most poor people would find that exploitative?

    I tend to personally side with “yes”. The notion of harvesting the lower classes for body parts is positively ghoulish.

  21. #21 |  Radley Balko | 

    The notion of harvesting the lower classes for body parts is positively ghoulish.

    Which is a completely dishonest way of framing the issue. No one will be giving up the organs that they need to live. They might, however, get paid to sign a donor card so their organs could be used when they die. Or they might get $50,000 for a kidney.

    But hey, better that thousands of people in need of organs die waiting, even if a better system could find willing donors for them.

    Preventing even the mere appearance of inequality is the much more important principle.

  22. #22 |  Joseph Stromberg | 

    We mustn’t forget Posner the Lesser (Eric) and his sidekick Adrian Vermeule, who spend their lives toiling away with great dedication to prove that the American executive has more power than God, but, nonetheless, is nothing like a dictatorship. They’ll be getting a presidential Medal of Freedom any day now, and it won’t matter which party is in office.

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