Cops vs. citizens with recorders: who wins?

A recent Gizmodo post discusses videos depicting police abuse and what is a dubious at best reaction from law enforcement. Specifically, some states are now making it illegal to record or photograph an on-duty law enforcement officer. From the article:

In response to a flood of Facebook and YouTube videos that depict police abuse, a new trend in law enforcement is gaining popularity. In at least three states, it is now illegal to record any on-duty police officer.

Even if the encounter involves you and may be necessary to your defense, and even if the recording is on a public street where no expectation of privacy exists.

The most alarming example comes from Christopher Drew, who recorded his own
arrest for selling $1 artwork on the streets of Chicago. The charges of
peddling in a prohibited area and not having a peddler’s license were dropped;
instead, Christopher is being prosecuted for eavesdropping, a class I felony.

Christopher documents his experience with some very pointed commmentary in this blog entry which includes a quote from Robert Lederman’s instructions to artists in New York City about documenting everything. Christopher also delivers this white-hot flame against the sad state of affairs in Illinois with regard to the eavesdropping law, which I quote in part (and agree with completely):

If you are a corrupt public official or a person involved in corruption its in your favor to have an eavesdropping law that prevents anyone from recording anything in public without the fear of a felony. A corrupt person feels more comfortable in a state like that. Unfortunately, its possible for a lot of honest people to end up felons while the real felons walk free. That’s why I ask – what is the state of our police in this state we are in?

Christoper’s experience is a huge blemish against the reputation of the city of Chicago as friendly to artists and those who express themselves. A blemish that a city of that size cannot afford.

Radley Balko wrote an editorial about Christopher’s rejected motion to dismiss the case, which asks many pointed questions, and also points out the history of the Illinois eavesdropping law, which originally had an expectation of privacy exception, but has not since 1994. Quoting Radley’s article:

Here’s where it gets even worse: Originally, the Illinois eavesdropping law did also include a similar expectation of privacy provision. But the legislature stripped that provision out in 1994, and they did so in response to an incident in which a citizen recorded his interaction with two on-duty police officers. In other words, the Illinois legislature specifically intended to make it a Class I felony, punishable by up to 15 years in prison, to make an audio recording of an on-duty police officer without his permission.

The fact that this came about in response to an incident involving a conversation with two on-duty cops should say everything about the intent of the state legislature. This already-bad law, of course, has not gotten better with age; in fact technology and the ubiquity of small devices capable of recording audio and video has made this bad law even worse.

So is it always risking arrest to record an on-duty cop in those states? Well, not really, as quoting from the Gizmodo article:

In short, recordings that are flattering to the police – an officer kissing a baby or rescuing a dog – will almost certainly not result in prosecution even if they are done without all-party consent. The only people who seem prone to prosecution are those who embarrass or confront the police, or who somehow challenge the law. If true, then the prosecutions are a form of social control to discourage criticism of the police or simple dissent.

This kind of law, combined with blatant selective enforcement, is entirely out of place in free society, and a mockery of the standards by which decent people live. Indeed, I believe the criticism and challenge of unjust laws to be an essential part of a free society. I’ve used this quote from the FSF before, but it applies yet again:

The idea that laws decide what is right or wrong is mistaken in general. Laws are, at their best, an attempt to achieve justice; to say that laws define justice or ethical conduct is turning things upside down.

Indeed, the abuse of eavesdropping and wiretapping laws is another example of how those charged with enforcing the law often view themselves as above the law. It’s in the same general category as cops conveniently disregarding stop signs, traffic lights, speed limits, prohibited turn signs, etc at their convenience (when not responding to a bona fide emergency, and I specifically exclude the donut shop closing for the night in five minutes from the definition of such an emergency). Indeed, it’s incredibly convenient that getting video of these types of reckless acts by those sworn to serve and protect is risky business in some places, yet one could easily take all the video one wants of, say, a cop hugging his daughters.

I’d expect the kind of insanity in certain other countries: UK, Germany, France, maybe even Mexico or Canada. But the United States of America was founded on freedom from tyranny, and it is in the direction of tyranny that these laws take us. This egregious trampling of the First Amendment cannot continue unchallenged, lest those who fought to acquire and maintain that freedom and others are to have ultimately done so in vain.

Finally, I encourage everyone to support Christoper Drew’s legal defense, either financially or just by raising awareness of this serious issue. This is wrong and the real criminals here are the ethically bankrupt Chicago police and prosecuting attorneys. I’ll post more details on exactly what Christopher needs as I get them.