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Judge’s Decision on Illinois Eavesdropping Law a Victory for the Right to Record

Art depiction of Chris Drew for selling art for $1 in front of Macy's in Chicago (photo: beartnow )

In a ruling that could be considered good news for citizen journalists or live streamers planning to cover the G8/NATO summit protests in Chicago in May, a Cook County judge in Illinois ruled the state’s eavesdropping law is unconstitutional.

According to a Chicago Tribune report, Judge Stanley Sacks found the law is unconstitutional because it has the potential to criminalize “wholly innocent conduct.”

The Illinois eavesdropping law is a state law that makes it illegal to record police without their consent.

The ruling issued was handed down in the case of artist Christopher Drew. In December 2009, Drew, who has a history of challenging the city’s restrictions on the selling of art, was peddling silk-screened patches for $1 in an act of civil disobedience. A First Amendment lawyer and a team of photographers filmed his arrest. The police let the filming go, and Drew was arrested. When it was time for Drew to face his charges, he found out he had been given a Class 1 felony charge for violating the Illinois Eavesdropping Act and filming his arrest. This meant he faced a possible sentence of fifteen years in prison.

News of the decision came this afternoon. It would seem that Drew is in the clear and will not be going to jail.

The Illinois eavesdropping law has not been hugely popular among people in Illinois, who know how it can be used to prosecute people unfairly. But, for police, it has been one of the best reasons to be a police officer in Illinois.

The law makes it possible to go after people who record them (people, as they say, who would “selectively edit” footage to make it seem like police brutality happened). It lessens the possibility of police being entangled in police misconduct cases, which is important for the city. From 2000 to October 2007, the city paid out $126 million to settle police misconduct cases. And, currently, the city of Chicago is moving to settle lawsuits for arrests during a 2003 protest against the Iraq War, where protesters were corralled and trapped on Lake Shore Drive. Individuals could receive $10,000-$20,000 each.

The decision sharply deviates from the conclusions of an Illinois conservative judge named Richard Posner, who had no sympathy for the ACLU when it brought a case against the eavesdropping law. Posner told the ACLU:

I’m not interested, really, in what you want to do with these recordings of peoples’ encounters with the police…Once all this stuff can be recorded, there’s going to be a lot more of this snooping around by reporters and bloggers…. I’m always suspicious when the civil liberties people start telling the police how to do their business.

Police are known to enforce the law themselves. In the final days of January, Occupy Chicago was out protesting in the city when a police officer took a camera from someone who was live streaming the action and deleted the video. He told the live streamer, Keilah, that she could have been charged with a felony.

That individuals could be able to get away with recording police may be Mayor Rahm Emanuel and the G8/NATO Host Committee’s worst nightmare. The judge’s decision may have implications on whether police can take individuals’ cameras during upcoming protests or threaten individuals with a felony if they do not stop recording the protests. Police superintendent Garry McCarthy may decide to issue guidance to police officer that they are not to interfere with anyone filming. This may mean it could be impossible to stop the documenting of police misconduct. The likelihood of lawsuits, which are inevitable, would increase.

Illinois State Rep. Elaine Nekritz had been working to pass legislation that would amend the law and “allow citizens to record officers who are on-duty in a public place.” This would make it nearly impossible for police to publicly justify any interference with live streamers, who were recording protest action in Chicago.

Individuals coming to the G8/NATO protests will have cameras. They will be recording. They will be capturing audio of police as they “control” or “handle” the protests. They will be violating a law.

People may still be arrested for recording. They may be charged with felonies. But, the good news is that, after this decision, any such charges are unlikely to stick because today a judge declared the law unconstitutional and rekindled debate about a restrictive law that few states happen to have on the books.

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Kevin Gosztola

Kevin Gosztola

Kevin Gosztola is managing editor of Shadowproof Press. He also produces and co-hosts the weekly podcast, "Unauthorized Disclosure."