March 02, 2012, 5:06 PM — 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.