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Wednesday, February 01, 2012

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.

Posted by Howard Wasserman on February 1, 2012 at 03:21 PM in Constitutional thoughts, Current Affairs, Howard Wasserman, Law and Politics | Permalink


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This is the sort of situation where I really wish Justice Douglas were still with us. It seems obvious to me, if perhaps to nobody else, that this is the sort of case where penumbra reasoning really makes sense. If the first, fourth, fifth, sixth, seventh, and fourteenth amendments have a penumbra, surely the right to record the behavior of law enforcement officials performing their duties for future examination in a court/criticism in the political sphere is in it.

Oh well. More work for rule of law scholars. Right. Onto the research agenda this goes.

Posted by: Paul Gowder | Feb 2, 2012 8:54:16 PM

Has anyone tried to argue that by voluntarily remaining where they know they're being filmed, the police are implicitly consenting? If someone carries around the equivalent of a "this area is under surveillance" sign, do they at least have a colorable defense against the law?

Posted by: Andrew MacKie-Mason | Feb 2, 2012 7:11:12 PM

An Illinois trial court has held the "secret recording" provision unconstitutional as a violation of due process and the First Amendment. http://iln.isba.org/sites/default/files/blog/2011/09/Cell%20phones%20and%20eavesdropping/Allison%20order.pdf

Posted by: Bruce Boyden | Feb 2, 2012 2:30:04 PM

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