Illinois’ eavesdropping law could make unwitting criminals out of honest citizens attempting to document police misconduct.
Legislation to remedy that situation received House committee approval last week.
House Bill 3944 would permit people to record the conversations of police officers carrying out their duties in a public place. For the eavesdropping exception to apply, the conversation would have to be “audible to the unassisted ear” of whoever is making the recording. In other words, no high-powered boom microphones recording from across the street.
People already can video police encounters, but if audio is recorded, the person could be arrested. Considering the number of people with digital cameras and cellphones capable of recording audio and video, the chances of people with no criminal intent running afoul of this law has greatly increased.
The push to update this law — considered the strictest eavesdropping law in the nation — gained greater urgency with the G-8 and NATO summits coming to Chicago in May. International journalists and visitors — as well as Illinoisans — can be expected use cameras and cellphones to record events, including expected protests.
The constitutionality of the law is being challenged in court. Crawford County Circuit Judge David Frankland tossed out a felony eavesdropping case against a person who recorded his encounters with police and a judge. A case also is pending in the 7th U.S. Circuit Court of Appeals.
Frankland’s sound reasoning deserves repeating. “A statute intended to prevent unwarranted intrusions into a citizen’s privacy cannot be used as a shield for public officials who cannot assert a comparable right of privacy in their public duties,” Judge Frankland ruled. “Such action impedes the free flow of information concerning public officials and violates the First Amendment right to gather such information.”
But rather than wait for further court action, the Legislature should move forward and approve HB 3944.
Police raise red herrings about gang-bangers recording informants or witnesses being intimidated. But it’s doubtful that gang members are worried about eavesdropping laws. Besides, this hasn’t been a problem in other states with laws less strict than Illinois.
This is a narrowly tailored exception to Illinois’ eavesdropping law — perhaps too narrow, but it’s a good start. People should be able to record both audio and video of their encounters with police in public places, without being intimidated, threatened (or actually) arrested or having their cameras or phones seized.
HB 3944 should be passed and signed into law as soon as possible.
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