Police misconduct is a legal problem which can be difficult to prove. Part of the reason it is laws often restrict the kinds of evidence which can be collected. Many states, for example, prohibit private citizens from recording police activity on electronic devices without consent. One of the harshest of these laws can be found in Illinois’s anti-eavesdropping law, which gives a fifteen year prison sentence to anyone who records police conservations or statements without police consent. This law, however, has been deemed unconstitutional by a U.S. Appeals Court on First Amendment grounds. Since the United States Supreme Court has declined to hear an appeal from Illinois, the anti-eavesdropping law has been overturned, a victory for the American Civil Liberties Union (ACLU), the plaintiff in the case.
The Illinois anti-eavesdropping law contained two exceptions when recording the police was allowed, although neither exception helped the statute survives judicial scrutiny. The first exception made the law a one-way street: although private citizens received a fifteen year sentence for using their cell phone to record police conversations, police were free to make audio recordings without fear of punishment.
The second exception was for media who used the recordings for live or future broadcasts on TV or radio that was meant for the general public. The second exception looked like a First Amendment accommodation, but the exception fails to take into account printed media which might want to make use of recorded statements of police misconduct victims who want to use the recordings as evidence of misconduct or excessive force. These types of activities were hindered by the Illinois statute and the ACLU rightfully exposed these loopholes in getting the law overturned.
The anti-eavesdropping statute isn’t without merit though, despite being an obstacle to proving police misconduct. Contrary to some views on the internet, the police shouldn’t be subject to a “if they have nothing to hide, they have nothing to fear” inspection. This kind of thinking hides a presumption of “guilty until proven innocent”, a perversion of the current criminal justice assumption of “innocent until proven guilty.” Police have rights as well, and if privacy is a right for private citizens who are wiretapped, the same values should be enforced for the police as well. Equality does not mean much if the rules do not apply to everyone. The anti-eavesdropping law might not reflect the equality principle, but that is partly why that the statute was unconstitutional, not why the police should be treated less than the average citizen.
Of course, the police have more power and responsibility than the average citizen. Police abuse of power must also be kept in check. But what about the victims? Crime victims, who speak with the police about, for example, rape, deserve privacy as well. Although keeping the media out of a criminal proceeding is often beneficial for a fair trial for the defendant, victims should not be pressured to speak about what happened until they are ready to talk about the crimes. An amateur journalist who whips out the cell phone to record a police interview with victims violates the privacy of the victims as much as the privacy of the police officer.
These dissenting arguments are far from bulletproof; its arguable police abuse is more common than the need for victim privacy, but the point is that there is a legitimate state interest in privacy. Cell phones and Apple products have increased scrutiny of government wrongdoing, but privacy must be universal if it’s to have any meaning. Although government should be transparent, government cannot always help those in need without a degree of privacy as well.
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