Cook County Judge Says Law Banning Recording Police Is Unconstitutional

schwit1 writes "A Cook County judge Friday ruled the state's controversial eavesdropping law unconstitutional. The law makes it a felony offense to make audio recordings of police officers without their consent even when they're performing their public duties. Judge Stanley Sacks, who is assigned to the Criminal Courts Building, found the eavesdropping law unconstitutional because it potentially criminalizes 'wholly innocent conduct.' The decision came in the case of Christopher Drew, an artist who was arrested in December 2009 for selling art on a Loop street without a permit. Drew was charged with a felony violation of the eavesdropping law after he used an audio recorder in his pocket to capture his conversations with police during his arrest."

Comments

deal with it

[Black Parrot]

Law enforcement officials need to get in line with the fact that society is going to require them to behave.

Those that can't need to find another line of work.

Re:deal with it

[marcello_dl]

You don't even have to imply anything about their behaviour. In fact since they are the good guys they have nothing to hide, so they should be recordable.

Now, there are corner cases where, say, an undercover cop would be exposed if a film of him in operation is PUBLISHED. But that's another matter. Let first citizen record whatever they want and use it to defend themselves in court. Let them also be responsible of all the damages they indirectly cause if the release of film to the publc damages some cop, which last time I checked is a citizen too and has equal rights).

Re:deal with it

[jellomizer]

The problem is that there are a lot of bad cops out there. If you ore someone is getting arrested fore something they should have a record of it for themselves. There are too many cases when something goes wrong the police tape unexpectally cuts out.

Re:deal with it

[AngryDeuce]

There are too many cases when something goes wrong the police tape unexpectally cuts out.

Or this one where seven independent police tapes unexpectedly cut out!!

And police wonder why people are automatically defensive and nervous around them...

Re:deal with it

[Ihmhi]

This is an opportunity for geeks to do something useful here.

What we need is a device with a video camera and microphone. Once the "record" button is depressed, it records and automatically uploads everything it captures to an off-site server that is secured w/ encryption. Moreover, it doesn't stop recording until a code is entered (to prevent a cop from tampering with it). With the cheapness of electronics nowadays we could probably create something like this for less than a hundred bucks (fees for transmission notwithstanding).

Or maybe just an iPhone/Android app...

Re:deal with it

[anagama]

Half there: http://www.ustream.tv/everywhere/android

Just need to add in encryption and keycode for application of the "stop" button.

Re:deal with it

[jythie]

I agree most cops are good people who work hard BUT police have an institutionalized problem of protecting the bad cops. So even though there are only a few bad apples, departments and fellow officers generally protect the bad cops rather then prosecute them due to the whole 'brotherhood' sticking together.

Re:deal with it

[NormalVisual]

A cop doesn't have to be "on the take" to be a bad cop. He can be a brutal and violent thug with utter disregard for the rights of citizens or the truth without taking a single bribe.

Or he can be absolutely clean in his interactions with the public, but still have knowledge of this kind of stuff going on while turning a blind eye to it.

No Problem

[aix tom]

The "Police" will just join the RIAA and then sue people on the angle that they recorded their performance.

Re:No Problem

[Richard_at_work]

The Police have been covered by the RIAA since the 1970s...

Re:No Problem

[Arancaytar]

There needs to be a "+1, Terrifying" mod option.

Re:Link to Article Please

[Richard_at_work]

Ars is covering it...

http://arstechnica.com/tech-policy/news/2012/03/illinois-judge-law-barring-recording-police-is-unconstitutional.ars ...with lots of nice links.

Hello, context here

[Rogerborg]

The law attempted to prevent audio or video recording anyone without their consent, not just police.

Of course - of course - it was abused by Illinois' finest, but that wasn't really who it was intended to protect.

Re:Hello, context here

[Anonymous Coward]

> The law attempted to prevent audio or video recording anyone without their consent [arstechnica.com], not just police.

IMHO, here lies the problem.

See, Stuart the man has a right about his privacy as anyone else -- but Officer Stuart has not.

People take different roles and live through corresponding different contexts. A Law Officer must be transparent at all times; while I will certainly not want to be nitpicky about how many post-its he uses, I certainly want his use of the gun monitored. A Police Officer has a public job and as such, he is accountable.

Re:Hello, context here

[TCFOO]

I agree. Once a police officer puts on thier uniform s/he waves any right of privacy until they are off duty. Recording officers on duty creates evidence that can be used in court or by the departments internal affairs personell to punish bad cops or reward good cops.

Re:Hello, context here

[cdrguru]

The problem that nobody seems to want to talk about is I, Bystander B is watching and recording the police dealing with Citizen A. Citizen A is very loudly disclaiming that he had anything whatsoever to do with Woman W, who is also standing by the police clearly accusing Citizen A of doing something nasty and wanting the police to "do something about it".

I take my recording home and realize Citizen A just recently had their picture in the news as some supposedly upstanding person. I now have easy blackmail material or can simply sell my recording to the same news organizations for a tidy profit.

It doesn't matter what Citizen A was or was not doing - their public life will be filled with innuendo and snarky comments. If they happen to be married, that might be over now as well. Just having a recording of someone interacting with the police is grounds for termination from any number of public-facing jobs. So with one recording you get to destroy someone's entire life.

Now, if you are Citizen A and making the recording yourself that is a whole different matter. But what the public wants and news organizations will pay for is Bystander B's recording. Today in most jurisdictions attempting to do something like this openly will get you a trip to the jail and your recording device confiscated - you might get it back if you apply in person and pay the $50 fine. Or you might not. You can assume that if these laws are unconstitutional and go unenforced anyone with a life they value will just run from any interaction with the police for fear of it being recorded and used against them.

Sure, the right attitude is that if there is no conviction there is no crime. But that isn't how things work today. If you are publiclly arrested and questioned about rape or child molestation you can figure it will get out and your life is over - no matter if they have the wrong person or not. Having a recording of some school principal getting a traffic ticket when they were complaining about student drivers is going to be lots of fun for people. So this could really stack up to be quite entertaining.

You can't have it both ways

[penix1]

Police just love it when they record suspects and will use other sources of recordings besides those given with consent against suspects. Those suspects should also have the right to use recordings in their defense. If you ban recordings, then the ban should be on both sides. That would mean every dashboard mounted camera should be removed from all those police cars if this law was allowed to stand.

Re:You can't have it both ways

[hldn]

hate to break it to you, but the cops that don't want the public recording them would be just fine not having dash cams in their own cars too.

Re:You can't have it both ways

[AngryDeuce]

Oh, they're not worried about their dash cams. They can always "lose" the footage if it's too damaging...

Re:You can't have it both ways

[AngryDeuce]

After all, look at the "failure" rate!!:

Lawyers for McCarren say she was investigating possible misuse of government resources and following a county official when she and her cameraman were pulled over by seven police cars. The official had called police about a suspicious vehicle.

McCarren says police dislocated her shoulder and tore her rotator cuff in the incident. Neither she nor her cameraman, Peter Hakel, was ever charged with any violations.

[...]

Questions still remain unanswered as to why police were unable to produce video of the incident from their cameras.

Prince George's County Police vehicles are required to have dashboard video cameras operating as part of an understanding with the U.S. Department of Justice reached in 2004.

Police have denied repeated media outlet requests to review the video.

At the time of the incident county officials, including County Executive Jack Johnson, said none of the cameras in the seven police cars was working.

Re:You can't have it both ways

[causality]

McCarren says police dislocated her shoulder and tore her rotator cuff in the incident. Neither she nor her cameraman, Peter Hakel, was ever charged with any violations.

That's strange. I'm not a lawyer so I hope someone will correct me if I am wrong, but as I understand it, if a cop physically harms you but does not charge you with resisting arrest, he is effectively admitting he assaulted you for no reason.

At the time of the incident county officials, including County Executive Jack Johnson, said none of the cameras in the seven police cars was working.

Ever heard of a contract of adhesion? It's when a big entity like your insurance company draws up a standard contract. You have little or no ability to negotiate the wording or terms of the contract. It's a take-it-or-leave-it deal. The flip side is that any unclear or unspecified terms in that contract are automatically interpreted in your favor.

We need a concept like that for police and their "broken" dashboard cameras. If the cameras are faulty or footage is missing, it is assumed that whatever story the citizen tells is the correct one. Overnight, police departments would suddenly start doing a better job maintaining their "faulty" equipment.

My friends a cop...

[Jackie_Chan_Fan]

Cops love to be dicks. Trust me.

They dont want to be recorded because it would force them to behave.

Police are PUBLIC SERVANTS

[Tastecicles]

By virtue of their PUBLIC presence they pretty much surrender any expectation of privacy while they wear the uniform. EVERYTHING they do and say is and should be subject to public scrutiny; if this requires the midstep of recording them for use later, then so be it.

In the UK the Data Protection Act 1998 reflects this in section 36, thus:

"Personal data processed by an individual only for the purposes of that individual’s personal, family or household affairs (including recreational purposes) are exempt from the data protection principles and the provisions of Parts II and III."

This has been used to (successfully) argue that audio recording anywhere outside a situation where Section 3 of the Official Secrets Act 1911 comes into play (ie anywhere outside a military installation) for personal purposes, including legal (which falls within the definition in section 36) is *legally* permitted. Police officers walking on a public right of way does not fall into the category of military installation, therefore does not fall into the purview of OSA, therefore in this respect recording (audio or video) of police officers is legal.

Of course, that doesn't prevent them from threatening you with arrest under section 44 of the Terrorism Act 2000 (been there), which funnily enough only grants an authority to stop and search for terrorism-related paraphernalia. Which last time I looked, didn't extend to camera equipment.

IAAL.

Re:Police are PUBLIC SERVANTS

[HBI]

For bad police, cameras are terrorism.

Re:Link to Article Please

[buchner.johannes]

Yes, here is a particularly interesting one (don't get distracted by the filename)
http://arstechnica.com/tech-policy/news/2011/06/if-you-pull-out-your.ars

Re:It's sad this was required...

[BitZtream]

Its a law designed to prevent me from recording you without your permission. Its written to prevent citizens from recording other citizens without permission, what happened however is that the cops tried to claim that it was illegal to record them because they are also citizens. While this is true, when operating in the capacity of a public servant, some exceptions must be made to protect the public from abuse.

This is simply a case of the police manipulating a law intended to protect you, that was poorly written (well, they found an obvious loophole at the least) and taken advantage of by corrupt police.

If you actually look at the court case, the judge also really doesn't have a problem with the spirit of the law, its just implemented and used in a way that he feels isn't allowed for.