Thursday, September 2, 2010

Eavesdropping on Police?

The American Civil Liberties Union of Illinois yesterday filed suit in federal court against Cook County State's Attorney Anita Alvarez seeking to enjoin enforcement of the state's eavesdropping law against the ACLU program to record statements of police officers.  The complaint:

[T]he ACLU intends to undertake a program of monitoring police activity in public places by means including common audio/video recording devices.  Specifically, the ACLU intends to audio record police officers, without the consent of the officers, when (a) the officers are performing their public duties, (b) the officers are in public places, (c) the officers are speaking at a volume audible to the unassisted human ear, and (d) the manner of recording is otherwise lawful (hereinafter "the ACLU program").  Where appropriate, the ACLU intends to disseminate such recordings to the public, and also to use these recordings to petition the government for redress of grievances through its advocacy program.

The [eavesdropping law] makes audio recording police officers in these circumstances a felony.  Due to reasonable fear of arrest and prosecution, the ACLU is restrained from engaging in this conduct.

Complaint at paragraphs 3 and 4. 

The eavesdropping law provides that "[a] person commits eavesdropping when he . . . [k]nowingly and intentionally uses an eavesdropping device for the purpose of hearing or recording all or any part of any conversation . . . unless he does so . . . with the consent of all of the parties to such conversation . . . ."  720 ILCS 5/14-2(a)(1)(A).

The complaint charges that application of the eavesdropping law violates the Free Speech Clause, the Petition Clause, and the Free Press Clause of the First Amendment.  "This First Amendment right to gather, receive, and record information includes the right to audio record police officers in the circumstances described herein."  Paragraph 10.

The complaint also alleges that at least four State's Attorneys, including Alvarez, are prosecuting individuals under the law for recording police officers conducting their public duties in public places.

The allegations recall the case of Anthony Graber, the Maryland motorcyclist who recorded his stop by a plain-clothes state trooper last spring and posted it to YouTube.  The trooper obtained an arrest warrant charging Graber with violation of the state's wiretap law.  State police seized Graber's computers and hard-drives and his videocamera.  The Harford County State's Attorney obtained a grand jury indictment.  Here's a local newsclip with excerpts from Graber's recording:




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