Recording police, redux

Dahlia Lithwick has a story and preparations in Chicago for the G-8 Summit this spring and apparent plans by the Chicago police to prevent protesters and journalists from recording the events, particularly any arrests that occur. As I've discussed previously, Illinois has a strict two-way consent law, which requires that all parties consent to the electronic recording of any conversation or actions. And unlike most states, Illinois does not except recordings of public officials performing their public functions in public from the protections of the law, nor does it limit the law only to situations in which the person recorded has a legitimate expectation of privacy (which a public official performing public tasks on the public streets should not have). The state is infamously prosecuting two people who recorded police misconduct. At the same time, a constitutional challenge to the law brought by the ACLU was dismissed in the district and now is pending before the Seventh Circuit. Former GuestPrawf Eric Johnson and Jonathan Turley both reported on last fall's oral argument, in which Judge Posner seemed (surprisingly) dubious towards the ACLU's argument that there is a constitutional right to electronically record events on the street, including this exchange:

“Once all this stuff can be recorded, there’s going to be a lot more of this snooping around by reporters and bloggers.”

“Is that a bad thing, your honor?”

“Yes, it is a bad thing. There is such a thing as privacy.”

Hopefully the court will resolve the issue before the summit, when things inevitably (and unfortunately) will turn ugly.