Why is it illegal to record on-duty cops?

BY RADLEY BALKO

Last week, a Cook County judge rejected Chicago artist Christopher Drew's motion to dismiss a Class I felony charge against him. Drew is charged with violating Illinois' eavesdropping statute when he recorded his encounter with a police officer last December on the streets of Chicago.

If found guilty, he could be sentenced to four to 15 years in prison.

I'm currently working on a feature story for Reason Magazine, where I am a senior editor, about a man in a more rural part of Illinois charged with six violations of the same statute, all of them for making audio recordings of on-duty public officials. For several of the counts in that case, the police were actually on the man's property. He started recording his conversations with police because he felt he was being unjustly harassed for violating a town ordinance he thought was unconstitutional.

I'm of the opinion that it should always be legal to record on-duty police officers, both as a matter of policy and under the free speech, free press and right to petition the government provisions in the First Amendment. We saw the power of audio and video recording technology to expose government abuse in the Iranian protests last summer. But we also see it here in the U.S. with the thousands of police-misconduct videos -- including several made in Chicago -- uploaded to YouTube in recent years.

Typically, police who want to arrest someone for recording them while on duty use a strained interpretation of state wiretapping laws or whatever state or local law addresses obstructing or interfering with law enforcement. These incidents are troubling enough, and I think state legislatures should consider passing laws explicitly making it legal to record on-duty law enforcement officials. Those laws should include remedies for people wrongly arrested, or who have had their cameras or cell phones illegally confiscated, damaged or destroyed.

But in Illinois, the situation is quite a bit worse. In Illinois, it actually is illegal to make audio recordings of on-duty cops -- or any other public official.

Illinois is one of a handful of states that require all parties to consent before someone can record a conversation. But the other all-party-consent states -- with the additional exception of Massachusetts -- also include a provision that for there to be a violation of the law, the nonconsenting party must have a reasonable expectation of privacy. On-duty police officers in public spaces have no such expectation.

Here's where it gets even worse: Originally, the Illinois eavesdropping law did, in fact, include an expectation of privacy provision.

But the Legislature stripped that provision out in 1994, and they did so in response to an incident in which a citizen recorded his interaction with two on-duty police officers. In other words, the Illinois Legislature specifically intended to make it a Class I felony, punishable by up to 15 years in prison, to make an audio recording of an on-duty police officer without his permission.

Given the spate of recent stories about cops in Chicago caught on video misbehaving, the state Legislature's already-awful-when-it-passed 1994 amendment hasn't aged well.

I suspect most state officials know this law is unconstitutional. While several people have been charged under the statute for recording public officials, I've been unable to find anyone who was actually convicted. Prosecutors tend to either drop the charges or offer a plea bargain before the case gets to trial. It isn't difficult to see why someone would take a misdemeanor plea and a clean record instead of challenging a bad law and risking up to 15 years in prison and a felony record if they lose.

So the law remains on the books.

Which means the police in Illinois remain authorized by law to detain, arrest and jail people who record them while on-duty, and they can continue to confiscate the recordings.

Radley Balko is a senior editor at the libertarian journal Reason, where this essay was posted online.