A DISCUSSION OF LAW AND JOURNALISM

Tag: anonymous sources

The Constitutional Right to Record

 

By Russell Smith

An Illinois eavesdropping law makes it is a Class 1 felony – carrying a penalty of up to 15 years in prison – to use any device to “hear or record a conversation” involving police, prosecutors, or judges without their permission. Most states have similar eavesdropping laws, but almost all have an exception for recording police conversations when officers have no “expectation of privacy.”

Generally, there is no legal expectation of privacy for conversations that take place on public streets or sidewalks; that’s why New York City doesn’t ban people from taking pictures of terror targets, like train stations or federal offices, so long as the photo is taken from a sidewalk or public street. And that’s why in most states, it’s not criminal for bystanders to whip out their cell phones to film police officers arresting or mistreating people at public protests.

But the Illinois eavesdropping law has no “expectation of privacy” exception. Chicago police have seized on this, using the law as a justification for snatching cell phones and video cameras from Occupy Chicago observers trying to document police misconduct occurring during demonstrations.

At Firedoglake, Kevin Gosztola suggested that the existing Illinois wiretapping law “violates the civil liberties of people in Illinois.” On Slate, Dahlia Lithwick bemoaned the “enormous constitutional problem” posed by the law, especially for journalists. But lost in the media’s disdain is a clear articulation of exactly what constitutional right the eavesdropping law infringes.

LASIS will clarify.   (more…)

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