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|THIS IS THE POLICE. DROP THE CAMERA: Illinois’ Eavesdropping Law Turns Smart-Phone Owners Into Felons - Page 3|
|News/Features - Feature Stories|
|Written by Larry McDonald|
|Thursday, 09 June 2011 05:47|
Page 3 of 3
Trooper. Officer. Deputy. Can We Talk?
I respect and appreciate what you do. In my experience, law-enforcement officers have behaved with the utmost civility and professionalism. As I reflect on the times that I’ve clearly been outside the law, I am reminded of the officers who cut me some slack. (One hundred ten miles per hour in a 55 zone comes to mind.) Admittedly, that slack probably wouldn’t have occurred if the officer thought he was being recorded, and it definitely wouldn’t have occurred if I jammed a camera in his face.
So let me attempt to return the favor. Remember when reality-TV shows such as Cops and America’s Most Wanted were introduced? Law enforcement won a tremendous public-relations chit then. You are in danger of losing that chit in the next few years. Not because of anything I think or say, but because the numbers and the technology are against you.
Every year we will see an increase in the number of smart-phone users, and the younger they are, the more likely they are to exercise their God-given right to video-record your activities – especially because they themselves were raised being video-recorded.
Every year, the cameras within the smart phones will become more technologically advanced. Features such as telephoto lenses will allow recordings to be made from greater distances. Cameras will shrink in size. Often, you will never know the recording was made. Social-networking sites and a younger generation’s increasing use of them will mean the video of you will go viral instantly. The eavesdropping act will no longer be any kind of shield, because once people are aware of it, they will cease to claim ownership of recordings. Then you are really in the censorship business, and we all know how well that works.
And the more you aggressively pursue enforcement of the law, the more people will find the law absurd and anachronistic, and push to repeal the ban on recording police activities.
But while the law is still in effect, what should you do?
Let people record. People are not motivated to photograph or record mundane, everyday events. They pull out cameras when unusual, exciting events occur. But while three squads converging on the perp look great in the editable world of Cops, it won’t look nearly as good when the perp is just a drunk at the convenience store and the cameraman is some kid with an Android. If just one unit shows up and the drunk is quietly given a ride home, the footage is almost certain to make it to the cutting-room floor, as they used to say.
At an organizational level, you’ll need to address this emerging and continuing departmental problem. Your leaders must craft a policy on recording police activities in public, and they’ll need to make some sound decisions. Will you enforce the law? Under what circumstances? What will your procedures be regarding the arrest of videographers, confiscation of their equipment, and deletion of recordings? Train your officers, and make sure the public is made aware of your policy.
That cop who caught me doing 110 in a 55 mercifully gave me an expensive ticket for 29 miles per hour over the speed limit, which I gratefully accepted. Thirty or over in Illinois means you landed on the Go to Jail space. Then he showed me an interesting little piece of technology. Namely, that the company that made my radar detector and the one that made his speed gun were one and the same. He went on to explain that every year or so, the company would come out with a new speed gun that existing detectors couldn’t pick up, and then it would introduce a new line of detectors that could. In other words, he wasn’t the trap; the trap was a clever snare of marketing, and by thinking I had some bit of technological advantage, I was speeding right into it.
Trooper. Officer. Deputy. Because you believe you presently have a legal advantage, please don’t go speeding into a public-relations trap.
(Return to the main story.)
Illinois’ eavesdropping statute dates back to at least 1961, but in the past two decades legislators have made significant changes.
At core, the law requires that all parties to a conversation consent to its recording. (Some states allow one-party consent – that is, only one participant needs to agree to let a conversation be recorded.)
In 1986, the Illinois Supreme Court ruled in People V. Beardsley that the eavesdropping law only applied to situations in which parties “believe that the conversation is private and cannot be heard by others.”
In 1994, the Illinois General Assembly made two key changes. First, it exempted law-enforcement officers from some consent requirements. It also expanded the definition of a “conversation” to eliminate the expectation-of-privacy requirement; the eavesdropping law now applies “regardless of whether one or more of the parties intended their communication to be of a private nature.” In other words, an audible conversation on a public street between a police officer and a citizen can no longer be legally recorded by a citizen without the consent of both parties under Illinois’ statute.
This makes Illinois’ eavesdropping law unusual. As the American Civil Liberties Union says in its current case: “The federal government, 39 states, and the District of Columbia each have a statute criminalizing the audio recording of certain in-person conversations – unlike Illinois – only if there is a reasonable expectation of privacy. [Only] two states other than Illinois [Massachusetts and Oregon] extend their prohibitions to audio recording of conversations whether or not there is a reasonable expectation of privacy, but they do so in a manner substantially narrower than in Illinois.”
In 2000, a provision enhancing penalties for recording law-enforcement officials was added. While a violation of the statue is a Class 4 felony (punishable by up to three years in prison), recording a law-enforcement official is a Class 1 felony (punishable by up to 15 years in prison).
Furthermore, in 2009 the Illinois legislature made more explicit some broad exemptions to the eavesdropping law for law enforcement. As the ACLU summarizes: “Uniformed police may record practically all of their conversations with civilians [without consent], while civilians are precluded from recording those same conversations.”
(Return to the main story.)
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