Illinois ACLU seeks end to prosecutions for recording public conversations with police

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For Immediate Release

August 19, 2010

ACLU seeks end to prosecutions for recording public conversations with police

 

CHICAGOResponding to a series of incidents in which individuals in four counties in Illinois have been charged with violating Illinois’ eavesdropping law for making audio recordings of public conversations with police, the American Civil Liberties Union of Illinois today asked a federal court to rule that the First Amendment bans such prosecutions.   The ACLU lawsuit, filed in federal district court in Chicago, argues that individuals (and organizations such as the ACLU) may make audio (and video) recordings of police who are performing their public duties in a public place and speaking in a voice loud enough to be heard by the unassisted human ear.  

 

The case is of particular import because the law is being used to arrest and prosecute those who want to monitor police activity in order to deter or detect any police misconduct.   In Champaign a few years ago, for example, a group of community activists attempting to document police practices in predominantly African American neighborhoods were charged with violating the Illinois eavesdropping law when they filmed and recorded police interactions with citizens in the public way.   (The charges were dropped only after the installation of a new states attorney.)    In Chicago, State’s Attorney Anita Alvarez currently is prosecuting an individual for violating the eavesdropping statute by recording police officers.      

 

Illinois’ eavesdropping law criminalizes the recording of certain non-private conversations, one of a small handful of states that does so.   Similar prosecutions have occurred in other states, including Massachusetts and Maryland.   Yet even as the Illinois law criminalizes civilians who audio record police, the law allows police to audio record civilians during traffic stops and in other situations.   

 

The ACLU recently felt the limitation of this law.  The media reported that Chicago police were conducting random searches of bags and backpacks of individuals who were passing by Chicago beaches on the pathway that runs adjacent to the beach and Lake Shore Drive.   When the ACLU investigated, it could not use widely available audio/video recording devices – like the smart phones carried by millions of Americans – to document police activity and conversations, because doing so would risk arrest or prosecution.  

 

“There is a lot of talk about the need for more transparency in government – we should demand that transparency from the police,” said Harvey Grossman, Legal Director for the ACLU of Illinois.    “Organizations and individuals should not be threatened with prosecution and jail time simply for monitoring the activities of police in public, having conversations in a public place at normal volume of conversation.”  

 

“Illinois’ eavesdropping law does not permit individuals or groups such as ours to gather critical information about police activities – information that we share with our members, policy makers and the general public,” Grossman added.     

 

The lawsuit was filed against Anita Alvarez as the State’s Attorney of Cook County.   She is sued in her official capacity as a prosecutor charged with enforcing the law.   The ACLU of Illinois argues that the law infringes on the First Amendment right of individuals and organizations to gather information about the police, to share such information with the public, and to use such information to petition government for redress of grievances or policy changes.   The ACLU seeks a court declaration and injunction against the application of Illinois’ eavesdropping law to allow audio recording of police performing their public duties in a public place while speaking in a voice audible to the unassisted ear.     

 

“It is not acceptable that an organization such as the ACLU of Illinois is threatened with prison time for conducting legitimate investigations into police action in Illinois,” said Adam Schwartz, Senior Staff Counsel for the ACLU of Illinois.   “We should not be forced to choose between fulfilling our mission and risking prison time for staff members.”    

 

“If this law stays in force, it will remain difficult for many citizens in Illinois to monitor and seek reform of police practices,” added Richard O’Brien, a lawyer with the Chicago office of Sidley Austin LLP who is cooperating with the ACLU on this case.   “It is time to change this law and let transparency shine into the practices of our law enforcement agencies.”

 

Assisting Grossman, Schwartz and O’Brien on the case are Linda R. Friedlieb and Matthew D. Taksin of Sidley Austin LLP and Karen Sheley of the ACLU of Illinois.  

 

#  #  #

 

A copy of the complaint if available at http://www.aclu-il.org/featured/2010/Complaint-ACLUvAlvarez.pdf

 

Patrick Thompson and Martel Miller case cited by Chicago Tribune

chicagotribune.com

ACLU challenges Illinois eavesdropping act

Lawsuit cites cases of people charged with breaking the law for making audio recordings of police in action

By Becky Schlikerman and Kristen Mack, Tribune reporters
August 19, 2010

It's not unusual or illegal for police officers to flip on a camera as they get out of their squad car to talk to a driver they've pulled over.

But in Illinois, a civilian trying to make an audio recording of police in action is breaking the law.

"It's an unfair and destructive double standard," said Adam Schwartz, a lawyer with the American Civil Liberties Union of Illinois.

On Wednesday, the ACLU filed a federal lawsuit in Chicago challenging the Illinois Eavesdropping Act, which makes it criminal to record not only private but also public conversations made without consent of all parties.

With cell phones that record audio and video in almost every pocket, the ability to capture public conversations, including those involving the police, is only a click away. That raises the odds any police action could wind up being recorded for posterity.

Opponents of the act say that could be a good thing and certainly shouldn't lead to criminal charges.

The ACLU argues that the act violates the First Amendment and has been used to thwart people who simply want to monitor police activity.

The head of the Chicago police union counters that such recordings could inhibit officers from doing their jobs.

In its lawsuit, the ACLU pointed to six Illinois residents who have faced felony charges after being accused of violating the state's eavesdropping law for recording police making arrests in public venues.

Adrian and Fanon Perteet were passengers in a car at a DeKalb McDonald's drive-through in November when police moved in. Officers suspected that the car's driver was under the influence, according to the brothers.

Fanon Perteet, 23, said he was scared. Past experiences with police had left him suspicious of the officer's motives, he said. So he pulled out his cell phone and turned on the video camera, which also records sound.

"I felt obligated to record so nothing happened," said Perteet, an event planner.

When the officers realized they were being taped, Perteet was arrested and taken to a squad car. Adrian Perteet, 21, a student at Northern Illinois University, then took out his cell phone and started recording his brother's arrest.

Both brothers were charged with violating the eavesdropping act, a felony, their lawyer Bruce Steinberg said. They pleaded guilty in April to attempted eavesdropping, a misdemeanor, to avoid felony convictions, Steinberg said.

The Perteets were ordered to apologize to the officers. They were given back their cell phones, which had been seized by police, but told to delete the recordings. If they complete the terms of the sentence and stay out of trouble, the charges will be dismissed, Steinberg said.

Nonetheless, the episode was an embarrassing experience, said the brothers, who live in Chicago's Old Town neighborhood. They welcomed the ACLU's lawsuit.

"I've been waiting for something like this," Adrian Perteet said. "I don't want it happening to anyone else."

Illinois is one of only a few states, including Massachusetts and Oregon, where it is illegal to record audio of conversations that take place in public settings without the permission of everyone involved.

Illinois' eavesdropping ban was extended in 1994 to include open and obvious audio recording, even if it takes place on a public street where no expectation of privacy exists and in a volume audible to the "unassisted human ear."

Experts said that although statutes like Illinois' have been on the books for years, more arrests have occurred in recent years because of the prevalence of cell phone cameras that also record audio.

Robb Harvey, an intellectual property lawyer in Tennessee, said it's likely there will be more widely disseminated videos with audio that show alleged police misconduct and more efforts by law enforcement to stop such recordings from being made.

Harvey and other attorneys said eavesdropping statutes were not intended to criminalize recording police officers in public.

"It's a stretch to apply surveillance laws to a situation on the street with an encounter between the police and the public," said Maryland defense attorney Steven Silverman. "An officer has no expectation of privacy when he makes a traffic stop or arrest in the course of his workday."

Silverman refers to cases similar to one involving the Perteets — two of which are pending in Maryland, which has a similar eavesdropping law — as "contempt of cop."

"The backlash is coming from embarrassment," he said of police reaction to being recorded. "These are archaic statutes, made in a time when technology was different. The laws need to catch up."

The defendant in the ACLU lawsuit is Cook County State's Attorney Anita Alvarez, whose office is pursuing an eavesdropping case against Chicago artist Chris Drew.

In December 2009, Drew intentionally set out to break the city's anti-peddling law by offering handmade, screen-printed patches for $1 on State Street.

The Rogers Park artist wanted to challenge the law that requires people selling their wares on the street to carry permits. Drew had a digital voice recorder tucked inside the red poncho he was wearing, and when police moved in, he made an audio recording of the arrest.

Now, in addition to charges for peddling illegally, Drew faces a felony eavesdropping charge. He is fighting the charges.

People "have the right to defend themselves and bring evidence of what the police said to them in public and bring it into public court," he said.

Alvarez's office said it received a copy of the ACLU suit Thursday afternoon, had not had a chance to review it and could not comment.

Mark Donahue, president of the Fraternal Order of Police in Chicago, said he believes the state's eavesdropping law is a good one. Allowing people to make audio recordings of arrests "could potentially inhibit an officer from proactively doing his job," Donahue said.

Illinois' eavesdropping law has been challenged before. In 2004, Martel Miller and Patrick Thompson were making a documentary contrasting the lives of minority residents of Champaign with students attending the University of Illinois. They filmed multiple traffic stops and were charged with eavesdropping, according to court records.

The charges were later dropped, according to court records, but the two men filed a federal lawsuit saying their constitutional rights had been violated by the city of Champaign, police officers and county officials.

The lawsuit was settled for cash, but Thompson declined to reveal how much was awarded.

Richard Goehler, a First Amendment lawyer in Ohio, said eavesdropping felony convictions have been secured in other states, which makes the ACLU's lawsuit necessary and timely.

"This suit comes at an important time," Goehler said. "It has merit and will hopefully stem the tide of these kinds of prosecutions."

bschlikerman@tribune.com

kmack@tribune.com

Facing Prison for Filming US Police

by Chris Arsenault

When police arrested Anthony Graber for speeding on his motorbike, the 25-year-old probably did not see himself as an advocate for police accountability in the age of new media.

But Graber, a sergeant with the Maryland Air National Guard, is now facing 16 years in prison, not for dangerous driving, but for a Youtube video he posted after receiving a speeding ticket.

The video, filmed with a camera mounted on Graber's motorcycle helmet designed to record biking stunts rather than police abuse, shows a plain clothes officer jumping out of an unmarked car and pointing a pistol at the motorcyclist.

It does not portray the policeman in a positive light.

After he posted the video on Youtube, police raided Graber's home, seized computers and put him in jail.

"The case is critical to the protection of democracy because I don't think you can have a free country in which public officials are able to criminally prosecute people who film what they are doing," David Rocah, a lawyer with the American Civil Liberties Union in Maryland who is representing Graber, said.

Wiretapping

Even though he had never been arrested before, Graber is being charged with illegal wiretapping and could face 16 years in jail.

"This is about shielding the policeman, a public servant, from journalistic scrutiny," Steve Rendall, a media analyst with Freedom and Accuracy in Reporting (FAIR), told Al Jazeera.

The arrest happened in April and the trial is expected to begin later this year.

Rocah said his client "was charged under the wiretapping statute which prohibits taping oral communications without consent".

The statute, which does not mention video recording, is not supposed to apply to "conversations in a colloquial context, but in a private context" Rocah told Al Jazeera.  

The encounter happened on a public street and, according to Rocah, police officers - public officials tasked with protecting the public interest - should not be able to hide behind such rules to avoid scrutiny.

"The value of documenting what is happening cannot be over-stated," he said.

Threat to privacy?

Supporters of the crack-down on filming police argue that citizen journalists pose a threat to privacy.

That is the logic Joseph Cassily, the prosecutor handling Graber's case, is likely to make at the trial.

In media interviews, Cassily presented a scenario where police stopped someone on suspicion of drinking and driving, asking for a breath test, and a random passerby filmed the encounter, putting it on the internet without consent from the driver or the officer. 

"Is there some interest in protecting private individuals who may be having a conversation with the police? Yes," Rendall said.

"But in the end, I think that is out-weighed by the public's right to know."

"[Furthermore] you can't walk through Washington Square [a public space in New York] without being in the view of dozens of video cameras run by the police."

Recording ban

The wiretapping statute which bans "secret" recording of private conversations is legislated by the state of Maryland, not the US federal government.

Other US states, including Florida, Illinois and Massachusetts, have used similar laws against citizen journalists. 

In 2007, police in Florida arrested Carlos Miller, after the journalist photographed the arrest of a woman.

"They [police] told me to leave the area, saying it was a 'private matter' and I said 'this is a public road'. They escorted me across the street and told me to keep moving. I had the right to be there and kept taking photos. They arrested me," Miller said.

He was charged with a series of misdemeanors and like many Americans arrested for filming police, Miller was eventually acquitted in court.

The arrest prompted the reporter to start the blog Photography is Not a Crimewhere he has documented more than eight similar incidents.

But the idea of winning court battles against journalists may not be the reason security forces prosecute journalists with wiretapping laws and other methods.

Intimidating journalists

"The whole reason for these laws is to intimidate people from filming," Rendall said. 

And attempts to intimidate journalists into putting down their cameras reach far beyond the US.

In February the UK's Guardian newspaper ran the headline "Photographer films his own 'anti-terror' arrest"for a story and video about a man who was held by police for eight hours after taking pictures of Christmas celebrations in the small town of Accrington.

Rocah points to the example of the post-election protests in Iran. "The regime completely shut down the traditional media," he said.

"It was citizens' video posted on the web that allowed the world to see what was happening."

Barack Obama, the US president, went so far as to ask Twitter to hold-off on a maintenance operation because the social networking site was playing an important role in the protests.

Police assault

The most prominent US example of a citizen journalist filming police was arguably the case of Rodney King, a black man in Los Angeles who was assaulted by several police officers. His beating was filmed by a citizen standing at a nearby gas station.

Without video evidence, King, a convicted felon, may have stood little chance testifying against police officers in court.

But the video of King's beating flashed across news screens and helped spark the 1992 Los Angeles riots, which left more than 50 people dead and caused about $1bn in property damage.

The dynamics of video-tapping have fundamentally changed since then.

"I think that technology is making the issue [of arrests] arise with increasing frequency because the ability to record is more widely distributed than it ever has been," Rocah said.

The civil liberties lawyer, who believes the wiretapping law is unconstitutional and will eventually be struck down, says he is confident his client will be found not guilty.

Broader trends

But even if he is, this case is indicative of broader trends in media, and consequently, the exercise of power.

As technology outpaces the abilities of states to control the flow of information, governments in the US and beyond are cracking down on independent journalists.

"In the past, freedom of the press only really belonged to those who owned newspapers, TV stations or other major outlets," Miller said.

Now information is more diffuse; history easier to record and technology easier to afford.

Direct evidence, including video of police abuses, is the easiest way to hold the powerful to account. And that may be exactly why security forces do not want to be caught on tape.

 

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