The ACLU won points this week in its fight against Illinois’ eavesdropping law – specifically the part that says people can’t make audio recordings of on-duty police officers in public without their consent. Illinois’ current eavesdropping law makes doing this a felony. Lower courts had rejected the ACLU’s case, but a federal appeals court in Chicago heard arguments and came out on the side of the ACLU.
Illinois has strict eavesdropping laws to begin with. In most states, making an audio recording is allowed as long as one person to the conversation knows about it. Illinois is part of the minority that says everyone in the conversation has to know about the recording in order for it to be legal. And the crime becomes more serious when the audio recording is of a police officer.
This week the appellate court said the law is most likely unconstitutional and issued an injunction, which basically says that the state can’t prosecute you for violating this law.
I think it’s a good thing. First off, the law seems like overkill. Spending years in prison for pressing “record” on your phone? It’s a bit extreme, especially these days when so many people have phones that record. And especially because we’re talking about police officers who are on the job and out in public anyway. This isn’t a legal argument, just common sense.
Second (here’s the legal part), there are free speech issues that come up, which is one thing the appellate judges talked about in their opinion. The government can’t make laws that are too restrictive, such as preventing you from publishing your opinions. It’s less obvious in a case where you are making a recording on your phone, but freedom of speech includes the freedom to make speech (videos, for example).
Also, it seems relevant to point out that the police want to be able to make recordings of us without our consent. A new bill has been introduced to expand the ability of cops to record certain suspects without first getting the approval of a judge. I’m not saying private citizens should be able to do whatever cops can do, but this doesn’t seem right.
Recently, the City of Chicago announced that it would not enforce the eavesdropping law during the NATO summit – probably a good choice. Not only would it be a logistical nightmare with thousands of people carrying smart phones, but now a court has ordered that the law can’t be enforced anyway.
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