The distinction between evidence and eavesdropping got a little clearer this morning, when a Chicago judge declared unconstitutional an Illinois law used to punish people who audio- or video-record police in action.
In most places within the U.S. the First Amendment protects anyone making audio or video recordings of things they can see or hear while not committing other crimes.
If police pull over a car in the street in front of your house, for example, it's perfectly legal for you to stand there and watch, especially if you remain in your own yard.
In most places it's legal even to video-record things going on in your neighbor's house if you're on your own property and minding your own business while you do it.
One of the most common questions student photojournalists have to deal with during ethics classes is when it's legal to have taken a photo of a senator beating his wife inside his own house. Quick answer: If you're up a tree, in his yard or anywhere other than on obviously public property, it's illegal. If you're on the sidewalk, the senator's curtains are open and the light from inside streams out to your camera of its own free will, you're free to record the event on film.
Police, mostly on their own authority or by departmental policy, often reject those traditional views in favor of one in which any recording other than their own is considered intrusive, antagonistic and likely to product not truth and justice, but unwarranted accusations of brutality or abuse.
The Illinois Eavesdropping Statute and some other recent laws passed in other states are designed to prevent that by making an artificial connection between private or confidential conversations that participants treat as private, and events that happen in public, where any camera-phone, close-circuit security camera or satellite can record them.
Many police departments obsessed with who is watching them
Documents stolen from Arizona law enforcement agencies by hackers last June highlight the obsession many agencies have with the potential for being recorded by members of the public and possible negative consequences of it.
In Arizona, some even went so far as to list common iPhone apps designed to surreptitiously record police during arrests or traffic stops and recommend arresting officers search specifically for those apps, almost as if equipment to make a secret recording of an arrest were as dangerous to a street cop as a gun.
Most states forbid anyone from recording a private phone conversation unless at least one of the people involved in the conversation knows it's being recorded. Many states require at least two people know about the recording; some require that everyone know.
That's why, when you call your insurance company, bank or other giant corporation's help desk, a recording tells you the call may be recorded "for quality control purposes."
The call will be recorded, but for purposes of giving the company evidence of what happens during the conversation. You don't have to stay on the line if it's being recorded, but the company is off the hook for eavesdropping in almost any state after letting you know you're being recorded.
The Illinois Eavesdropping Statute stretches the boundaries of what is appropriate to overhear by making it illegal for anyone to audio- or videotape an event or conversation without the knowledge and approval of everyone involved.
It would never be prosecuted, but the law would technically make it illegal to video-record a snippet of a football or basketball game – especially recording the cheering crowd rather than the players – without getting the permission of everyone in the crowd beforehand.
Neighbor's voice caught on videotape of your kids in the backyard? That's a felony
The Illinois Eavesdropping Statute doesn't kid around, either. Violating it is a Class 1 felony with penalties ranging up to 15 years in prison.
That's what Chicago artist and photographer Christopher Drew, 61, faced after being arrested in 2009 for selling patches on the street without a peddler's license.
When police approached, Drew, uncertain of their intentions, hit the Record button on a tape recorder in his poncho. It recorded the conversation between Drew and the arresting officer. When police found the recorder it got Drew a felony indictment for eavesdropping on a conversation in which he was a participant, the other party was a public official engaged in activity required to be treated as a public record.
“It was impossible for me to imagine a law based on privacy would make it illegal for me to tape a public conversation by a public officer on the public way who was arresting me,” Drew told the Chicago Sun-Times. “I should have the right to bring evidence into court of what that officer says to me in public.”
The judge may not have agreed with that, but certainly agreed that not every sound or image should become contraband simply for having been recorded.
"The Illinois Eavesdropping Statute potentially punishes as a felony a wide array of wholly innocent conduct," according to the decision by Judge Stanley J. Sacks. "A parent making an audio recording of their child’s soccer game, but in doing so happens to record nearby conversations, would be in violation of the Eavesdropping Statute."
Judges don't agree that cops can stop videorecording; cops keep doing it anyway
The decision doesn't help anyone outside of Illinois – and may not help anyone in Illinois if prosecutors appeal Drew's case to the Illinois Supreme Court and it overturns Sacks' decision.
It does help define the difference between recording a public event – using cell-phone video cams and audio recording as in these cases in Boston, Oregon, Rochester, NY and an increasingly long list of other places in which police have decided the act of recording them pursuing felons should itself be a felony.
It may interrupt the plans of Chicago police, who have warned they will arrest anyone videotaping or audio-recording their efforts at crowd control, arrests and confrontations with protesters during the G-8 Economic Summit in Chicago May 15-22. (Protesters are gearing up to make an event of it.)
Sacks' decision isn't the first to remind police that what they do in public is allowed to be viewed by the public.
A federal circuit judge in Boston reached a similar conclusion in August absolving a Boston lawyer of the crime of using his cell phone to videorecord an arrest on Boston Common. (The suit and publicity surrounding it didn't stop Boston police from arresting someone else for the same thing in 2009.)
The American Civil Liberties Union has also made censorship-by-arrest a civil rights issue it will pursue in court.
It's obvious cops don't want to be videotaped while they try to do their jobs, and it's hard not to sympathise to some extent. No one wants to be nitpicked to death by strangers while trying to do a difficult job against spirited opposition.
It's also obvious that the First Amendment was written specifically for situations like this one – when public officials want to silence or punish those who could hold them accountable to courts and the public to which they should be held accountable.
The opposition from cops is not because they think the law or someone else's rights are being violated. It comes from a deep desire to keep anyone but themselves from documenting the process they use to do their jobs.
Accurate recordings deflate as many accusations as they support
It's a traditional right of police. They don't have to write down every single thing that happens, so the things that don't contribute to their view of a situation never make it into official notes.
When every member of the public is a potential video-recording YouTube-posting, rabble-rousing photojournalist, that makes every member of the public a danger to police. Not a physical danger a gun would help address, danger to the reputation and career, which only bluster, censorship and the unjust use of power can control.
Unfortunately for the minority of control-freak cops, there are a lot more video-enabled cell phones out there than there are police to arrest them, and the video recorders have the law on their side.
Chicago Superintendent of Police Garry McCarthy is one of the cops who actually understands both the civil rights involved and the way video can be used or abused.
He told the Chicago Sun-Times the silence-the-public aspect of the Illinois Eavesdropping Statute is "a foreign concept" to U.S. laws and law enforcers. More recordings of police doing their jobs will actually help police that do their jobs well by preventing or deflating accusations of misconduct that are more emotion than fact.
I just hope more senior-level police understand that concept and evangelize it to cops on the street.
It would help them stop worrying about who's watching and just focus on doing their jobs.
Read more of Kevin Fogarty's CoreIT blog and follow the latest IT news at ITworld. Follow Kevin on Twitter at @KevinFogarty. For the latest IT news, analysis and how-tos, follow ITworld on Twitter and Facebook.