Judge Posner Fears 'Snooping Around by Reporters and Bloggers' If People Are Allowed to Record the Police


Yesterday the U.S. Court of Appeals for the 7th Circuit heard arguments for and against the Illinois ban on audio recording of police in public places. Illinois has one of the country's strictest eavesdropping statutes, requiring consent from all parties even for recording police on the street while they are performing their official duties. Doing so without permission is a Class 1 felony punishable by a prison sentence of up to 15 years, exposing people to the risk of arrest and prosecution for recording public events such as protest rallies or their own encounters with the police. Meanwhile, the police are free to record citizens during traffic stops or other interactions. The American Civil Liberties Union of Illinois is asking the 7th Circuit to correct this double standard by barring prosecution of people for exercising their First Amendment rights by "recording police officers performing their public duties in a public space." The group's legal director, Harvey Grossman, explains:

In order to make the rights of free expression and petition effective, individuals and organizations must be able to freely gather and record information about the conduct of government and its agents—especially the police. Organizations and individuals should not be threatened with prosecution and jail time simply for monitoring the activities of police in public, having conversations in a public place at normal volume of conversation.

But the Chicago Sun-Times reports that one member of the 7th Circuit panel seemed deeply troubled by the prospect of allowing citizens to monitor the police, instead of the other way around:

"If you permit the audio recordings, they'll be a lot more eavesdropping.…There's going to be a lot of this snooping around by reporters and bloggers," U.S. 7th Circuit Judge Richard Posner said. "Yes, it's a bad thing. There is such a thing as privacy."…

"The gangs who are interested in monitoring each other will rejoice in your case," Posner told the ACLU.

He said gang members who want to snoop on each other could start secretly recording conversations and say they're protected because they were taping suspected police informants.

They could say that, but they'd be wrong, since they would be recording private citizens in private places, as opposed to public servants in public places. There is indeed "such a thing as privacy," but an arbitrarily defined legal right to privacy that is unmoored from property rights and contract rights is a menace, as this case shows. Even worse is a concept of privacy that offers less protection to ordinary citizens than it does to police, who have far more power to abuse.

The Sun-Times cites a recent case (noted here by Radley Balko and Nick Gillespie) that illustrates the dangers of these lopsided rules:

Last month, a 20-year-old Indiana woman was brought to trial on charges that she secretly recorded police officers. The woman, Tiawanda Moore, said she taped internal affairs officers on her Blackberry because they were trying to convince her to not go forward with a sexual harassment complaint.

Moore said she didn't know about the Illinois Eavesdropping Act, which prohibits the recording of any private or public conversations without the consent of all parties.

A jury acquitted her.

One more thing: Posner's speculation about the dire consequences of letting people record the police is not backed up by the experiences of other states, the vast majority of which already allow such recording. "The law in Illinois is an aberration," Grossman notes. "It's virtually unheard of for law enforcement officers in other states in our country to be able to use eavesdropping laws as a weapon against citizens who seek to do nothing more than record their activities and oral expressions." 

The ACLU of Illinois has more on its case here. If you have not read Balko's revealing January cover story about "The War on Cameras," you should do so without delay. Reason.tv covered the subject in May: