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Tuesday, February 15, 2011

Police Have More, Better Rights than You

Two court cases could weaken access to justice in Illinois.

Last week redOrbit declared that Chicago is “on a path … to become the country’s most-watched city.” Over 10,000 government and private cameras are linked to an official surveillance system called Operation Virtual Shield. At least 1,250 of them are “powerful enough to zoom in and read the text of a book.”

In this Orwellian scenario, however, one class of people is granted ever more privacy: on-duty policemen. Even as the Illinois police defend their “right” to surveil everyone on the grounds that those being watched are in public, they deny the public the right to record them in the line of duty.

Instead, the police invoke an eavesdropping law to prevent omnipresent cell phones and other recording devices being pointed their way. Illinois is one of 12 states that requires “two-party consent” for the recording of a conversation to be legal. Along with Massachusetts and Maryland, it is one of three states that does not make an exception for recording on-duty policemen in public places.

Law with Teeth

The Illinois eavesdropping law has teeth, as Chris Drew and Tiawanda Moore have discovered. Drew and Moore are two of nine people currently being prosecuted for recording on-duty police officers. They are charged with a Class 1 felony that carries up to 15 years in prison and a $25,000 fine. (Similarly recording a mere citizen carries up to only three years in prison.)

Drew is a 60-year-old Chicago artist who, as a protest, intentionally violated a city ordinance against selling art on the street. He had a friend record his encounter with the police on an Olympus voice recorder. Instead of being fined or charged with a misdemeanor as he expected, Drew was arrested on felony eavesdropping. His trial is set for early April.

Moore is a 20-year-old former stripper who tried to file a sexual harassment complaint against a policeman responding to a domestic violence call. When Internal Affairs refused to take her seriously, Moore started recording her encounter with the two officers on a Blackberry. The result: a Class A felony charge. Her trial was tentatively set for early February but there is no record of it yet occurring. Perhaps prosecutors have been discouraged by coverage of her plight in the New York Times and a petition on her behalf from the Chicago Taskforce on Violence Against Girls and Young Women; the Taskforce argues that Moore’s prosecution will have a chilling effect on women reporting sex abuse by police officers.

Meanwhile, in January a First Amendment challenge to Illinois’s eavesdropping law brought by the American Civil Liberties Union (ACLU) was rejected by a federal judge.  The ACLU suspended its plans to record police-civilian interactions for fear of being arrested, but the grounds for the challenge signals what is likely to become a trend.

Justice in the Balance

Justice itself depends on people being able to document their  encounters with government agents, especially the police. If people are prevented from establishing the truth through evidence, then they have no defense against a corrupt, incompetent, or vengeful police officer.

When Mark Donahue, president of Chicago’s Fraternal Order of Police, defends the eavesdropping law on the grounds that recording an officer “can affect how … [he] does his job on the street,” he misses the point. Changing police misconduct is the purpose of such recordings. And an officer who is threatened by the truth or transparency is someone who badly needs to change behavior.

Donahue insists that surreptitious recordings are an invitation to abuse but he stops short of explaining why police should be trusted with power that is far more subject to abuse. The explanation seems clear: The police have more and better “rights” than you or your children.

Chicago’s massive surveillance program may well become a trend in America’s cities. But if the police can arrange it, the cameras will point only one way. Sadly, hypocrisy is not illegal in Illinois. It is official policy.

  • Wendy McElroy is the author of over a dozen books on individualist feminism and libertarian history. Her upcoming book, "The Satoshi Revolution," applies the concepts of classical liberalism to cryptocurrency. She has been published by such diverse venues as Penn State to Penthouse, FEE to Marie Claire.