2010, Recording the Police

OFF THE WIRE

Monday, September 27, 2010Recording the Police
by Greg Miller - Investigative Reporter


There are 38 states that allow “one party consent” to record a conversation; normally, the one party consenting is the person conducting the recording. However, in the remaining states, all parties either must consent or at least have been notified that a recording is being made. For example, Washington is one state that requires that an announcement be made indicating that a conversation is being recorded in order for that recording to be legal. Illinois requires all parties to consent for a recording to be legal, otherwise, the person who conducted the recording can be charged with a felony.

There are four types of invasion of privacy: Disclosure of a private matter, false light, appropriation, and intrusion. Disclosure of a private matter is disclosing issues that normally do not concern the public; false light is “half truths and distortions” of facts; appropriation is “using another person’s likeness”; and intrusion is the same as invasion of privacy or trespass. The Supreme Court has made past rulings in regards to the different areas where privacy is more expected and less expected, such as in private homes, shopping centers and public streets. In cases for intrusion, there are three conditions that constitute intrusion, “the intrusion must have happened in a place where there was an expectation of privacy, the defendant must have intruded and the intrusion must be offensive to a reasonable person”.

Considering the privacy of another; a person has a reasonable expectation of privacy depending on where they are. If a person is inside their own private home, then obviously, there is a high level of expectation of privacy. On the other hand, if a person is at a public event, such as on a public street, then there is a very low expectation of privacy. Being how another person is likely to over-hear that person’s conversation, then a reasonable person would believe there is little privacy is this situation. In a US Supreme Court case, New York Times v. Sullivan, a government official is consider a public figure and the plaintiff mush show actual malice in order to sue for libel statements. Additionally, since a government official is a public figure the reasonable expectation of privacy should slightly diminish since the individual performs a function in the public interest. A police officer has a lot of power in seizing property and making arrest; therefore he is a public official.

Illinois Eavesdropping Act makes it a felony to create an audio recording without all parties on the recording giving consent. The only exceptions to the Illinois Eavesdropping Act are domestic violence, patrol car cameras, recordings made under the open meeting act and video cameras operating in plain view such as a news crew filming.

The question is: will an Illinois Supreme Court or the US Supreme Court find that recording conversation without the consent of the others unconstitutional? The answer is no, unless the enforcement overreaches into a constitutional argument of freedom of press. We need to look at the manner the recording was made, the type of recording device that was used and the visibility of the device. If the camera was used in plain sight such as a video camera, audio recorder or cell phone; then, a reasonable person would believe that it was being recorded. Concealing the recording device such as a hidden wire or spy camera, then a reasonable person would not believe the recording is occurring unless the person recording announces there is a recording being made. What was the purpose of the recording? If the answer is for a lawful publication, then, there is a first amendment issues to take part in.

With blogs, YouTube.com and other publication interfaces; anyone can be a journalist, and rightfully so since the First Amendment protects the individual. For example, someone starts a YouTube.com channel, and then they have an open forum to publish what news they gather. If a non concealed device was used and the person had no reasonable expatiation of privacy, then the recording should be legal. It is believed the Illinois Supreme Court and the US Supreme Court will likely protect this type of speech.

On the other hand, it is unlikely the court will protect speech that is recorded surreptitiously because there seems to be a lack of Constitutional question of an individual right for free speech. The only exception I can find is that the Illinois Eavesdropping Act can be consider rather vague in the concept of the press since it does not expressly exempt recording audio or audio and video footage for the purpose of broadcast.