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Cook County Judge Says Law Banning Recording Police Is Unconstitutional 152

Posted by timothy
from the isn't-anyone-offended-by-the-original-charge? dept.
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."
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Cook County Judge Says Law Banning Recording Police Is Unconstitutional

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  • by AgentSmitz (2587601) on Saturday March 03, 2012 @07:22AM (#39230205)
    Hello,

    On this internet site people think privacy and transparency can work together. They can, when we work together.

    Thank you,
    Agent Smitz
  • deal with it (Score:5, Insightful)

    by Black Parrot (19622) on Saturday March 03, 2012 @07:32AM (#39230237)

    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 (Score:5, Insightful)

      by marcello_dl (667940) on Saturday March 03, 2012 @07:47AM (#39230291) Homepage Journal

      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 (Score:5, Insightful)

        by jellomizer (103300) on Saturday March 03, 2012 @07:58AM (#39230325)
        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 (Score:5, Informative)

          by AngryDeuce (2205124) on Saturday March 03, 2012 @09:52AM (#39230657)

          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!! [wtop.com]

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

          • Re: (Score:3, Insightful)

            by Anonymous Coward

            No they don't wonder -- they "know" everyone they interact with is guilty. They wouldn't be bothering you if you weren't.

            You put a bunch of people in uniforms, charge them with being good guys and catching bad guys, boom! You get a serious "us vs. them" attitude. It's psychologically almost inevitable.

          • the jury found them guilty - but didn't award much damages

            http://www.wtop.com/?nid=&sid=1577281 [wtop.com]

        • Re:deal with it (Score:5, Interesting)

          by Ihmhi (1206036) <i_have_mental_health_issues@yahoo.com> on Saturday March 03, 2012 @12:02PM (#39231431)

          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 (Score:5, Informative)

            by anagama (611277) <obamaisaneocon@nothingchanged.org> on Saturday March 03, 2012 @12:14PM (#39231553) Homepage

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

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

            • by wwphx (225607)
              Pop the SIM, remove the battery, drop it in a Faraday bag, turn it off: wouldn't be difficult to neutralize if detected. You'd be better off having the repository server in a foreign country so it couldn't as easily be seized if you tape and offend a Fed.
              • by adolf (21054)

                Or, you know, skip those other steps and just drop it in a Faraday bag.

                I own one. It works remarkably well. It cost less than $3, shipped, from China to the US.

                Every officer should have one.

          • by russotto (537200)

            Nobody cares. The cops do nasty stuff on camera all the time. Unless large parts of a city are set afire as a result, no one really cares. Most people know the cops are thugs in general, and will tell you so. But if anything specific actually happens, they'll blame the victim. Judges accept the cop's word over anything but an unambiguous recordings -- and often over those as well. Even when the cop's statements are demonstrably untrue. They can't not know the cops often lie; they are complicit in it.

  • No Problem (Score:5, Interesting)

    by aix tom (902140) on Saturday March 03, 2012 @07:34AM (#39230239)

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

  • Hello, context here (Score:5, Interesting)

    by Rogerborg (306625) on Saturday March 03, 2012 @07:39AM (#39230255) Homepage

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

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

    • by Anonymous Coward on Saturday March 03, 2012 @07:47AM (#39230293)

      > 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.

      • by TCFOO (876339) on Saturday March 03, 2012 @11:46AM (#39231291)
        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.
      • by cdrguru (88047) on Saturday March 03, 2012 @06:55PM (#39234487) Homepage

        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.

    • by drinkypoo (153816)

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

      There is no evidence of such in the law. Therefore you are simply being a cheerleader. Are you an employee of the state of Florida?

    • by skine (1524819) on Saturday March 03, 2012 @04:15PM (#39233383)

      And actually, I completely agree with the need for such "wiretapping" laws, even in a public space.

      However, the point to focus on is whether the individual being recorded has an expectation of privacy.

      The problem in this situation is that the law in Chicago states that consent is the only situation where the expectation of privacy is waived. Which is of course, ridiculous.

  • by penix1 (722987) on Saturday March 03, 2012 @07:42AM (#39230273) Homepage

    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.

    • by hldn (1085833) on Saturday March 03, 2012 @08:11AM (#39230349) Homepage

      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.

      • by AngryDeuce (2205124) on Saturday March 03, 2012 @09:37AM (#39230619)
        Oh, they're not worried about their dash cams. They can always "lose" the footage if it's too damaging... [reason.com]
        • by AngryDeuce (2205124) on Saturday March 03, 2012 @09:47AM (#39230637)
          After all, look at the "failure" rate!! [wtop.com]:

          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.

          • by causality (777677) on Saturday March 03, 2012 @12:04PM (#39231453)

            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.

            • by Dhalka226 (559740)

              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.

              Well I am not a lawyer either, but generally speaking police are protected for their behavior if it is done in good faith in the course of their duties. That's pretty clearly the case here: Somebody called the police about a suspicious vehicle and they stopped it and detained the pass

          • by Bios_Hakr (68586)

            No fan of the po-po here. But use some skeptical thinking. The individual "said" she had a dislocated shoulder and a torn rotator cuff. I see no mention of her visiting a hospital.

            Still, if a cop's camera is inoperative, he should be charged with dereliction of duty.

  • by subreality (157447) on Saturday March 03, 2012 @07:46AM (#39230287)

    I'm all in favor of the result of this decision, but this makes no sense: "... unconstitutional because it potentially criminalizes 'wholly innocent conduct."

    Isn't it the very purpose of criminal law to criminalize what would otherwise be innocent conduct? What law wouldn't be stuck down by this reasoning?

    I'd love to RTFA to find out more, but there's NO LINK. Source please?

    • by adamstew (909658)

      I'm pretty sure the judge's intent was that with this law, a convenience store owner could be arrested and charged with a felony because a policeman walked in to his convenience store and his cameras caught it on tape.

    • by demonlapin (527802) on Saturday March 03, 2012 @12:03PM (#39231449) Homepage Journal

      What law wouldn't be stuck down by this reasoning?

      Anything that is a malum in se offense, for starters. Murder, rape, robbery, assault, burglary... these are not innocent conduct.

      • That depends on the meaning of innocent. If there was no law against murder, murder would be "wholly innocent conduct" in the eyes of the law.

        If you take innocent in a less legal sense (as clearly intended), there are still a great many laws where "innocent conduct" - not intending any harm or perceiving the possible commission of a crime - is nonetheless illegal.

  • You'd think Sting was used to being recorded by now.
  • by Karmashock (2415832) on Saturday March 03, 2012 @08:13AM (#39230359)

    And it's sad that we're here to cheer about something that should have been the status quo in the first place.

    The law never should made it illegal to record the police. I suspect this is mostly a law designed to protect slippery government officials from getting snagged by whistle blowers.

    I any case... it's disgusting this ever was law in the first place.

    The police cannot be a legitimate servant of the law or the people so long as such laws remain on the books. They are entirely and manifestly unacceptable.

    • by BitZtream (692029) on Saturday March 03, 2012 @10:25AM (#39230789)

      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.

    • by tombeard (126886)

      As I understand it, the laws were originally written to protect corrupt politicians. Corrupt cops are just a bonus.

  • by Jackie_Chan_Fan (730745) on Saturday March 03, 2012 @08:17AM (#39230369)

    Cops love to be dicks. Trust me.

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

  • by Tastecicles (1153671) on Saturday March 03, 2012 @08:23AM (#39230379)

    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 [legislation.gov.uk] 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 [legislation.gov.uk] 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 [legislation.gov.uk] (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.

    • by HBI (604924) <kparadine@@@gmail...com> on Saturday March 03, 2012 @08:36AM (#39230419) Homepage Journal

      For bad police, cameras are terrorism.

      • by Tastecicles (1153671) on Saturday March 03, 2012 @09:11AM (#39230519)

        you could throw it back - I've done this and the police have backed down: if one gets in your face, right into your personal space, and starts threatening you, make him a promise of making a citizens arrest for armed trespass!

        • Needs to be a +1 nads of granite mod!
        • by MarkvW (1037596) on Saturday March 03, 2012 @12:06PM (#39231475)

          That is the stupidest thing that I have ever read. Never threaten violence against a policeman. Ever. That is how morons die. It is also against the law in many states.

          • The parent said arrest, not violence. While I agree that taking this attitude against a police officer is ill-advised, it's not the same as threatening one with physical harm.

            • by MarkvW (1037596)

              Cops are trained to escalate their level of violence so that it is always one level above the level of violence presented by their contact.

              Either you are going to back down, or you are going to escalate right along with the cop. If you escalate right along with the cop, you risk jail and physical harm.

              If the cop is messing with you, gather your witnesses and sue his ass later. When you mess with the cop on scene you are like a fool giving away his money at a casino.

              • by russotto (537200)

                If the cop is messing with you, gather your witnesses and sue his ass later.

                You'll lose and waste your time and harm yourself trying; this comes into the category of "wrestling with a pig". If a cop is messing with you, you can resist RIGHT THEN, and at least ruin his day, probably at the cost of your freedom or your life. Or you can submit. Talking about giving in then while somehow suing later is just assuaging your shame for surrendering; it isn't going to happen: ask any lawyer about your chances.

                • by MarkvW (1037596)

                  I'm not talking about "giving in." I'm talking about not escalating in the first place.

              • no, what you do is walk away. If he persists, then you affect a citizen's arrest, in front of witnesses. If he continues after that then you have the right to defend yourself.

          • If (and it's a big if) there is a felony committed in your presence, you may effect a citizen's arrest. This arrest power is not limited to who may be arrested. By virtue of a cop swaggeringly believing he's above the law and therefore untouchable, he will resist arrest. If you draw down on him, the fact that you were required to use lethal force will be taken into consideration and may even exonerate you.

            I would strongly advise never to personally test this, though the US Supreme Court has ruled that a

          • At no point did I advocate violence against a police officer. What I said was "make him a promise of making a citizens arrest for armed trespass". When someone gets into your personal space (ie within 18 inches of your face and in a threatening manner), and they wear enforcement paraphernalia (ie cosh, mace, gun, bracelets), *that* is armed trespass. At that point, considering and making the assumption that you have not committed an arrestable offence up to that point, you have the LAWFUL RIGHT to do two th

      • by Tanuki64 (989726)

        For bad police, cameras are terrorism.

        Bad police?
        http://en.wikipedia.org/wiki/Pleonasm [wikipedia.org]

        • by HBI (604924)

          Not every cop is there to harass people and enlarge his dick size. Just most of them.

          • by Tanuki64 (989726)

            Every single one. Those who don't help the victims and look away for what reason ever, are in no way better.

    • Of course cameras are terrorism related - you're obviously planning on filming the execution of your hostages.

  • by v1 (525388) on Saturday March 03, 2012 @11:21AM (#39231101) Homepage Journal

    The short of this is that we need a federal law (or supreme court decision) that specifically makes recording of law enforcement officers performing their duties in public places legal. Full stop. No restrictions or loopholes.

    The problem we're fighting is there's too much abuse of power and lack of outside accountability within most law enforcement groups. (sorry, an "internal investigation" leaves much doubt as to the impartialness of the findings) Recordings have been used over and over again to change the course of internal investigations that were attempting to (or had already) neatly sweep things under the rug and "failed to find any evidence of misconduct". The need for these recordings has been demonstrated so many times, and I don't recall a single incident of the recordings being challenged for any reason other than an attempt to cover up or retaliate. They have NO reasonable or lawful basis to deny this law. Law has no expectation of privacy while performing their duty in public, that should be obvious to all.

    • What is a federal law going to do in state court? Not a damned thing.
  • by sl4shd0rk (755837) on Saturday March 03, 2012 @11:23AM (#39231113)

    A lot of arm waving unfortunately does not accomplish much unless followed up with something to turn the law around. Wake me up when there's something to vote on.

  • Smoking marijuana is wholly innocent conduct. Can we get that one declared unconstitutional too?

  • by dbet (1607261) on Saturday March 03, 2012 @12:52PM (#39231837)
    Get rid of resisting arrest. It is only used to arrest people who haven't done anything wrong. It's everyone's duty to resist arrest.
    • by ErikZ (55491) *

      Really? Is that what you'd say if you were a police officer just trying to do your job?

      "You really need to resist this. I don't care how much damage you do to the car or myself."

      • by dbet (1607261)
        That's different. If you attack the officer or his car, that's already a crime, unrelated to whatever you're being arrested for. Resisting arrest is used when people argue with police or when police unlawfully shove you and you don't immediately go down into fetal position. It's also used to punish people who are being beaten by police and fight back. All of these are things you should be allowed to do.

        The other problem I have with it is the license it gives cops when you're resisting. Say you're on
        • In UK and Australia, under common law, you are legally allowed to use reasonable force to resist an unlawful arrest. Reasonable force is use of a roughly equivalent level of force as that used against you.
  • by ffflala (793437) on Saturday March 03, 2012 @07:34PM (#39234737)
    The deeper one looks into this, the more bizarre it looks. The current law is here: http://goo.gl/f0OyQ [goo.gl]. Section 14-2 is the real meat of it, its amendments are 94-183 and 91-657, and it was introduced by 79-781.

    According to Senator Millner, at the time in 1994 it was actually a class 4 felony for police officers to leave their dashboard cameras running. (pdf, @ page 32 http://goo.gl/sJlf7 [goo.gl])

    Going back further, the original motivation for the committee that started drafting the bill in 1975 seems to track back to then Senator Partee's mention of a report from the IL State Comptroller which claimed that there were a number of electronic eavesdropping devices unauthorized by any court around and within the State Capitol (pdf page 9 http://goo.gl/vssR9 [goo.gl].) The outrageous abuse of this law to prevent police accountability certainly doesn't seem to have been the original intention of the bill at any point down the line, at least from the legislative material I've seen.

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