Have you heard? A federal court’s decision may provide the impetus to overhaul Illinois’ ridiculously restrictive eavesdropping law.
Last week, the 7th U.S. Circuit Court of Appeals issued a ruling in a lawsuit filed by the American Civil Liberties Union in 2010. The suit sought to block Cook County State’s Attorney Anita Alvarez from prosecuting ACLU staff members for recording police officers performing their duties in public places. Such recording has been one of the ACLU’s long-standing monitoring missions.
Illinois’ eavesdropping law, which was enacted in 1961, makes it a felony for someone to produce an audio recording of a conversation unless all parties involved agree to it. The law sets a maximum punishment of 15 years in prison if a law enforcement officer is recorded. The law applies to audio recordings only.
In its opinion, the appeals court wrote, “The Illinois eavesdropping statute restricts far more speech than necessary to protect legitimate privacy interests. As applied to the facts alleged here, it likely violates the First Amendment’s free speech and free-press guarantees.”
We heard that.
The biggest problem with the state’s law as it stands is that it was written in an era when technology was far less developed than it is today. In 1961, the law was meant to prevent illicit recording of conversations through the use of hidden microphones and wire-tapping devices.
But fast-forward to 2012, and it’s a whole new ballgame. Much of the citizenry is equipped with phones capable of recording video and audio. It has becoming increasingly common for everyday citizens to pull out their phones when they see something newsworthy and to record the events, often capturing conversations and other sounds.
Especially as this trend applies to law enforcement officers, these recordings sometimes have captured police doing illegal or objectionable things, such as beating, Tasing or pepper-spraying people. Just as the framers of the Constitution provided for a free press to expose such abuses, so-called “I” reporters often have provided critical evidence of wrongdoing on the part of those charged with fighting crimes, not committing them.
Police often say that if citizens are not doing anything wrong, they shouldn’t object to searches and other law enforcement techniques. We believe the same is true in reverse: If law enforcement officers are not doing anything wrong, they shouldn’t object to audio recordings of their actions and words.
We believe there are enough laws on the books already that protect police officers in the case of citizens overstepping their boundaries and interfering with cops trying to do their lawful duty. And any rewrite of Illinois’ eavesdropping law should make that distinction clear and include it in the statute.
But we also believe it’s time for the General Assembly to overhaul this outdated and overly restrictive law to reflect new technologies, as well as the longstanding constitutional rights of citizens and the press. And we hope lawmakers get that message loud and clear.
Jayde Consulting's team are experienced practitioners of technical surveillance countermeasure (TSCM) sweeps, vulnerability assessments and counter-espionage consulting. We work within Australia and regularly internationally. We also maintain close associates in Europe and the USA.
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