At the end of last year, the 7th Circuit court finally enjoined the Cook County State's Attorney's, Anita Alvarez, from attempting to prosecute ACLU observers participating in its police accountability program which included the public recording of police officers in public areas while carrying out their duties. The emphasis of the program was on conduct during political demonstrations.
The police and the State's Attorney had been using an Illinois eavesdropping law that prohibits any recording of a conversation unless all parties consent. Origianlly passed in 1961 to prevent the non-consensual recording of oral communications.The law made it a felony, punishable by up to 15 years in prison, to record law-enforcement officers while they were on duty.
This type of law seems more reminiscent of the kind of restrictions imposed by third world repressive regimes which seek to silence critics and avoid accountability.
For instance , amnesty International's 2010 report on Azerbaijan describes the employment of similar measures :
"These [restrictive measures] prohibited the photographing, filming or recording of people without their consent, even in the public domain, effectively preventing the reporting of events of public interest. Opposition supporters and groups attempting to campaign against the referendum were reportedly intimidated and harassed by the police."
An international perspective can help us see that our domestic police forces should conform to the standards that the a world-wide community puts forward for all countries .
The quote below is from a report, "Police reform and institution building", from the Organization for Security and Co-operation in Europe ( OSCE ) which has 57 member countries including the United States.
"It [ accountability ] demands that the police organisation - at the individual, group and organizational levels – subordinates itself to the authority of the law, society and those lawful institutions that have oversight responsibility. Policing in a democracy necessitates that a police organisation is bound by such a legal obligation and imbued with a corresponding attitude toward the rule of law and society in general."
But here in Illinois, it was the Cook County State's Attorney who doggedly attempted to maintain this punitive law restricting a means for accountability, through a civil trial, a temporary injunction, an appeal to the CA7 and even an appeal to the US Supreme Court which declined to review the appellate court decision for the ACLU.
As the ACLU stated when the final permanent injunction was granted on remand, “The judgment confirms our long-articulated belief that in order to make the rights of free expression and petition effective, individuals and organizations must be able to freely gather and record information about the conduct of government and their agents – especially the police."
Alvarez had argued that the law was only regulating the behavior of getting consent and not the recorder's speech rights. However, why do citizens need to request permission to record what is already public conduct ?
As the appellate court noted although audio recordings are not speech themselves, they are entitled to constitutional protection as communication technologies which have essential speech-production functions. Burdening would-be recorders with such a requirement, effectively results in limiting their speech rights.
Judge Posner, the one dissenting judge on the appellate panel raised some minor concerns re. the possibility of distracting officers and encouraging disruptive behavior. He did raise a substantive concern that while the police may not have a valid privacy interest to be protectd, other persons, like witnesses speaking to the police, may have such interest. Apparently, this point did not change the position of the other two judges on the panel.
The enforcement ban, technically applies only to the ACLU and its employees and agents, but they hope the state will respect the order when dealing with others as well.
