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While the Seventh Circuit Court of Appeals continues pondering ACLU v. Alvarez , a case challenging the Illinois eavesdropping statute, Illinois is considering new legislation that would give police even more power to record suspects without their consent.
Under the Illinois eavesdropping statute, a person cannot record a conversation unless he has "the consent of all of the parties to such conversation or electronic communication." Last week, the Illinois House of Representatives passed a bill to amend the eavesdropping law to permit undercover cops to make audio recordings of suspected drug dealers without a judge's approval, reports the Chicago Tribune.
Public recordings have become a hot topic thanks to smartphone cameras. A Pew Internet study published in March noted that almost half of Americans have smartphones, which means there are plenty of citizen-photographers (and videographers) on the streets. Some of those smartphone owners have used their phones to record police officers employing questionable tactics in the scope of their duties. In several high-profile cases, cops have arrested citizens for recording police actions.
Last August, the First Circuit ruled that citizens have a right to record the police openly, and that the cops who arrest citizens for such recordings are not protected by qualified immunity. (Simon Glik, the plaintiff in that case, recently agreed to a $170,000 settlement with the City of Boston for damages and legal fees stemming from his wrongful arrest.) In September, the Seventh Circuit Court of Appeals considered a similar case, but seemed hesitant to reach the same conclusion. Judge Richard Posner expressed concerns during oral arguments that changing the law would allow reporters and bloggers to run amuck and enable gang violence.
The American Civil Liberties Union (ACLU) claims that the Illinois eavesdropping law creates a double-standard. Police can record citizens during interactions without the citizens' consent, but citizens risk a Class 1 felony and up to 15 years in prison for recording police.
A bill to amend the current law to allow citizens to record audio of police officers in public failed to pass the Illinois House in March, though two county judges have declared the law unconstitutional, the Chicago Tribune reports.
The Illinois House of Representatives seems content to whittle away Fourth Amendment rights -- keep in mind last week's amendment is an attempt to circumvent court approval -- while ignoring First Amendment rights. The legislature may make it easier for police to record citizens, but citizens will have to rely on the Illinois Supreme Court and the Seventh Circuit Court of Appeals to rule that they can record police.