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THIS IS THE POLICE. DROP THE CAMERA: Illinois’ Eavesdropping Law Turns Smart-Phone Owners Into Felons PDF Print E-mail
News/Features - Feature Stories
Written by Larry McDonald   
Thursday, 09 June 2011 05:47

In Illinois, you could get a lighter sentence for killing a cop than recording one.

Section 14-4 of the Illinois criminal code reads: “The eavesdropping of an oral conversation ... between any law-enforcement officer ... while in the performance of his or her official duties ... is a Class 1 felony.” Under Illinois law, a person is “eavesdropping” when he or she “knowingly and intentionally uses an eavesdropping device for the purpose of hearing or recording all or any part of any conversation” without the consent of all parties to the conversation.

A Class 1 felony is punishable by up to 15 years’ imprisonment. My irreverent sense of the humor often gets me in trouble, but I just can’t contain it here: You could get a lighter sentence for killing a cop than recording one. When Jonathan Posey was convicted of reckless homicide in the 2001 dragging death of Illinois State Police Master Sergeant Stanley Talbot in Rock Island, he only got a five-year sentence for that crime. Good for Mr. Posey, he wasn’t videotaping.

It’s important to note that the potential 15-year penalty in Illinois for audio- or video-recording the activities of police has been in place since 2000. What has changed in the past decade-plus is our technology. Audio- and video-recording are now standard-issue on smart phones, and stand-alone recording devices are cheaper and far more portable. The result is that there are now millions of citizen videographers on the street.

The Illinois eavesdropping statute is not some old legal chestnut similar to laws against leaving your horse on Main Street after dark. The police are actively using it, and three recent examples involve violators in their early 20s.

• In July of last year, Tiawanda Moore of Chicago went to police headquarters to file a sexual-harassment complaint against a police officer. Finding officers uncooperative, she pulled out her Blackberry to record their reactions. She was promptly arrested and charged with eavesdropping. A preliminary court date was scheduled for this week.

• In May in Galesburg, city police entered a private residence without a warrant, suspecting that there was underage drinking. Concerned that the police might have been violating search-and-seizure laws, Eric Kraus and Andrew Cree began recording the police activities. Both were arrested and charged with felony eavesdropping but not any other offense.

• In DeKalb in November 2009, brothers Fanon Parteet and Adrian Parteet were on a late-night run with a friend to the local McDonald’s when the car they were in was stopped by police on suspicion of DUI. While a DeKalb police officer was talking to the driver of the car, a second officer advised him that Fanon Parteet appeared to be recording him using a camera-equipped cell phone. While Fanon Parteet was being arrested and placed in a squad car, Adrian Parteet used another camera-equipped cell phone to record his brother’s arrest. Both were charged with eavesdropping, but they pleaded guilty in April 2010 to attempted eavesdropping – a misdemeanor.

As the American Civil Liberties Union (ACLU) notes in its current appeal of the ACLU V. Alvarez case dismissed last year: “In recent years, at least nine prosecutors have charged at least 13 civilians with violating the [eavesdropping] act [in Illinois] by audio-recording on-duty police. Five prosecutions were initiated in 2010 alone. The increasing frequency of prosecutions parallels the increasingly common ownership of mobile phones that record sound.”

A Fishbowl Made of One-Way Glass

The Illinois eavesdropping statute is troublesome for a number of reasons:

• The law is unusually restrictive. Only two other states – Massachusetts and Oregon – forbid the nonconsensual recording of plainly audible public conversations, such as an arrest on a public street. And Illinois allows for an enhanced penalty for recording law-enforcement officers. (See sidebar.)

• The law puts citizens at a disadvantage when it comes to collecting evidence for their defense. Police activity is often exempt from eavesdropping consent requirements in Illinois, and they can use the video and audio evidence they record in court proceedings. They are not obligated to share those recordings with people charged with crimes – even when the evidence might bolster a person’s defense. As media organizations wrote in an amicus brief in the ACLU case: “The act vests in law enforcement near-limitless discretion to decide which recordings should be concealed from public view and which may be conveyed to the public.” If citizens were allowed to record public police activity, it could assist defendants in protecting their rights.

• The law makes it impossible to monitor public police activity through video- and audio-recording. “This case seeks nothing more than a determination that the First Amendment protects this important expressive activity as a means of securing transparency and accountability in the operation of government,” the ACLU wrote in its appeal. The media organizations added: “The U.S. Constitution protects people who gather and disseminate information about matters of public interest. Yet the arrest and prosecution under the Illinois Eavesdropping Act violate this constitutional protection and run counter to the text, history, and longstanding interpretation of the First Amendment.”

In the broader view, though, this isn’t merely an Illinois problem. There appear to be many examples of police – sans a restrictive, Illinois-style eavesdropping law –who empower themselves to stop citizens from documenting their activities with recording equipment.

• Last September, as New Haven, Connecticut, police were breaking up a street fight, Luis Luna whipped out his iPhone and began recording from a distance. When police ordered him to stop recording and leave the scene, Luna refused. He was arrested, was charged with “interfering with police,” and spent the night in jail. Police confiscated his iPhone and returned it to him, without the video, after he pleaded guilty to a lesser charge of “public disturbance.” Questioned by reporters after the event, New Haven Police Chief Frank Limon conceded: “It’s not our policy to arrest people for filming. As a general principle, it is not illegal [in Connecticut] to video.” An internal-affairs report on the incident concluded: “The mere act of an individual video-recording the police officers while performing their duties is not prohibited by federal or state statute. ... The New Haven Police Department has adopted a ‘Video-Recording of Police Activity by the Public’ policy.”

• Last year in New Jersey, high-school honor student Khaliah Fitchette was handcuffed and had her camera taken away when she attempted to record officers attending to somebody who had collapsed on a city bus. She was not charged. According to the Newark Star-Ledger: “Fitchette’s case marks the third time in as many years when Newark police have been accused of mistreating residents who were attempting to film them.”

• In April 2010, Atlanta police twisted the arm of Marlon Kautz behind his back and took his camera after he tried to record them making an arrest. He sued and earlier this year settled for $40,000. His attorney told an Atlanta television station: “If you stand back away from the officers and you’re in a public place, you have an absolute right under 11th Circuit [Court of Appeals] law to photograph or video those officers.”

This is not just a case of a bad Illinois law. The problem is larger and more systemic. Illinois’ eavesdropping statute is terribly out-of-whack with the times, but so are practices outside of Illinois that use threats, arrests, and intimidation to block perfectly legal recording of public police activity.

Meanwhile, in the real world, the use of surveillance cameras has proliferated. Security cameras skirt eavesdropping laws by not recording sound, and cameras in stores and public places are so commonplace as to go unnoticed. Traffic cameras are used to ticket drivers. Google Earth allows anyone to peer into our backyards. Airport full-body scanners get all the headlines, while concourse eye-in-the-sky video cameras – their sly brethren – are so high-definition as to allow airport personnel to read the paperback you brought with you. Welcome to the fishbowl.

We have all relinquished privacy in the past decade. None of us decided on this, and we didn’t vote on it; it’s just the way it is. I hate this loss of privacy, especially when it is applied unfairly. When the privileged are increasingly empowered at the expense of the disadvantaged, it really cheeses me off.

And Illinois’ eavesdropping law is grossly tilted toward the powerful.

While recording a law-enforcement official is a Class 1 felony and carries a penalty of up to 15 years in prison, making a recording of a private individual is only a Class 4 felony with a maximum penalty of three years in prison.

And, of course, uniformed police are exempt from many provisions of the eavesdropping law, yet they only use those recordings when they assist in prosecution. Suppose, for example, that you are charged with a DUI, and the arresting officer’s dash-mounted camcorder shows you effortlessly jumping up and down on one foot, with your eyes closed, while reciting the alphabet backward during your field-sobriety test. The police don’t have to show that in court; in fact, they aren’t even obligated to keep that recording around.

The fishbowl, it would seem, is made of one-way glass.