Illinois’ Anti-Eavesdropping Law Overturned: The Price of Preventing Police Misconduct

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.

2 Responses to “Illinois’ Anti-Eavesdropping Law Overturned: The Price of Preventing Police Misconduct”

  1. 1 Geoffrey Grootenboer

    The Anti-Eavesdropping Law is just one of numerous efforts by the State of Illinois to erode innate rights, including the 4th Amendment. When “law enforcement” can randomly stop and search a citizen, fabricate lies, which are then perpetuated by the State’s Attorney, and subsequently rubber-stamped by Circuit and Appellate judges, the citizens have NO rights nor defense! Even if an Illinois defendant can prove that certain charges are false, experience shows that the remaining false testimony and perjury of the police will be upheld, without ANY question from most Illinois judges. This is the unwritten Illinois judicial protocol.

    The only defense a citizen has against this broken system is video or audio documentation. To penalize a person trying to defend herself against police falsehoods or abuse, with 15 years in prison, is absolutely draconian. Many thanks to Mr. Cheung for reporting on these seldom-publicized issues, which are near and dear to our dwindling freedom!

  2. 2 Paul Simon

    The has issued an informational video and a press release, to help the media and the general public in the upcoming oral argument at the Illinois Supreme Court hearing in Annabel Melongo’s eavesdropping case. The hearing is scheduled for January 14th, 2014, at the 18th floor of the Michael A. Bilandic Building, 160 N. LaSalle Street, Chicago at 9.30 am.

    Press Release:

    Please support this cause. The Illinois Eavesdropping law at its very core creates a two-class legal system wherein the conversations of the powerful and well-connected are protected to the detriment of the less powerful. The upcoming oral argument presents a unique opportunity for the common citizen to re-establish that legal balance that will unequivocally establish a right to record public officials in their public duties.

    Therefore, please contribute to this all-important hearing by either attending it, writing about it, spreading the word or just forwarding the below video and press release to anybody who might be of any help.

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