15 Years For Recording Your Police Encounter?

Many states only require the consent of one party to a conversation to legally record it. Some states require the consent of both parties (Think Linda Tripp and Monica Lewinsky.)

Illinois takes the two party consent rule to a whole new level. For years, it has been a felony to record a conversation unless all parties agree. And, if you record a conversation with a police officer or prosecutor without their consent, it's a class 1 felony punishable by 15 years in prison.

Illinois is charging people who record their conversations with police without their knowledge and consent. The Times article tells the story of one woman who recorded her conversation with an officer when filing a complaint for sexual harassment against another officer. And another of a man who sold art on the sidewalk without a permit and taped his conversation with an officer who arrested him for the violation.

The ACLU has been trying to have the law declared invalid, to no avail so far. Other states with similar laws: Oregon and Massachusetts. Here's a handy state-by-state guide (but check to see that it's up to date on your state.)

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    To borrow... (5.00 / 1) (#9)
    by kdog on Thu Jan 27, 2011 at 09:34:46 AM EST
    an often used phrase by the authoritarians..."if you've got nothing to hide, what's the problem with being recorded?"

    And to borrow another from Jagger/Richards..."these days its all secrecy, no privacy."

    5475 days cage time and no corpse?  Who are the criminals again?

    You beat me to the nothing to hide comment (5.00 / 1) (#12)
    by republicratitarian on Thu Jan 27, 2011 at 09:41:41 AM EST
    On the money

    Bingo! (none / 0) (#13)
    by NYShooter on Thu Jan 27, 2011 at 09:52:36 AM EST
    And to Capt Howdy's position on "stupidity," this could be the litmus test. Anyone who agrees with the statement, "if you have nothing to hide........." should be treated benignly, but restricted to plastic utensils.

    so (none / 0) (#14)
    by Capt Howdy on Thu Jan 27, 2011 at 09:54:33 AM EST
    are you agreeing or disagreeing with Kdog

    Jeeesh, you know (none / 0) (#15)
    by NYShooter on Thu Jan 27, 2011 at 10:00:45 AM EST
    My buddy, dogman, sometimes speaks in a strange, cryptic, urban-tongues  manner. So, I'm not sure how to interpret his comment, and don't want to guess. But, as for me, the "If you don't....." statement would make #1 on Letterman's 10 dumbest statements off all time.

    than I would (none / 0) (#16)
    by Capt Howdy on Thu Jan 27, 2011 at 10:01:48 AM EST
    agree with you.  and disagree (I believe) with Kdog.

    No, that's snark from kdog. (5.00 / 0) (#17)
    by jeffinalabama on Thu Jan 27, 2011 at 10:03:42 AM EST
    Dry snark, served cold.

    Yes sir... (5.00 / 1) (#18)
    by kdog on Thu Jan 27, 2011 at 10:08:07 AM EST
    Just throwing an authoritarian catch-phrase back in their face...I believe you've got a right to privacy whether you've got something to hide or not:)

    What I don't believe in is different rules different fools.


    however I am not sure (5.00 / 1) (#21)
    by Capt Howdy on Thu Jan 27, 2011 at 10:13:56 AM EST
    I would place the private sort of conversation that I absolutely think should not be recorded without permission and the sort of interchange you would have with a police officer in different frames.

    IMO if a cop has nothing to  hide in the way he treats you he should have no reason to care if he is being recorded.

    and if frogs had wings they would not bump their a$$ when they hop around.


    I'm flexible... (5.00 / 1) (#25)
    by kdog on Thu Jan 27, 2011 at 10:31:54 AM EST
    if the man doesn't wanna be recorded, stop recording us without our consent...works for me.

    But if they wanna keep recording and spying on us, we must have the right to record and spy on them...simple really.


    did you see the (none / 0) (#26)
    by Capt Howdy on Thu Jan 27, 2011 at 10:37:17 AM EST
    "recording" today of the guy sending pot across the border with a catapult?

    pretty funny.  its on cnn I think.


    I'll have to check that out... (none / 0) (#29)
    by kdog on Thu Jan 27, 2011 at 10:43:40 AM EST
    drug war necessity, the mother of ingenuity and invention!  I love it.

    and a question (none / 0) (#22)
    by Capt Howdy on Thu Jan 27, 2011 at 10:19:19 AM EST
    arent almost all police stops recorded now?  and do we have the right to get that recording?

    Don't know about "most" places, but ... (none / 0) (#27)
    by Yman on Thu Jan 27, 2011 at 10:37:27 AM EST
    ... here in NJ, most municipalities and the state police have their cruisers equipped to record their stops automatically when they turn on their lights/siren.  Some of the units have a "loop" that will record an interval (i.e. 30 seconds) before the lights are activated.  You can request a copy of the recording by way of discovery.

    I'm guessing that most cities and urban/suburban areas have their cruisers equipped to record stops, but maybe not all rural areas.


    I see (none / 0) (#28)
    by Capt Howdy on Thu Jan 27, 2011 at 10:42:00 AM EST
    Websters defines tort as

    : a wrongful act other than a breach of contract for which relief may be obtained in the form of damages or an injunction

    I would have thought in this case it meant using it in a legal sense as in court to prove or disprove something.  I guess not.



    Nah (none / 0) (#30)
    by jbindc on Thu Jan 27, 2011 at 10:44:34 AM EST
    A "tort" is basically a civil wrong against another party.  Trespassing, negligence, etc. are torts.

    good (none / 0) (#19)
    by Capt Howdy on Thu Jan 27, 2011 at 10:08:38 AM EST
    to know

    The irony is that... (5.00 / 1) (#38)
    by owenz on Thu Jan 27, 2011 at 11:00:43 PM EST
    Virtually all of the eavesdropping laws, starting with the federal (one party consent) law and the more protective state laws (two party consent) were all a direct response to the Supreme Court's 1967 rulings in Katz and Berger, which held that government eavesdropping without probable cause violated the Forth Amendment's prohibition on eavesdropping on private citizens without a warrant.  

    The vast majority of these statutes address eavesdropping from a Forth Amendment perspective; that is preventing governement intrusion on citizens.  Accordingly, the extension of the law to probit eavesdropping by private citizens that were stuck onto these bills is awkward, given that the Forth Amendment constrains only government activity, not the acts of private citizens.  

    Regardless, the notion that state governments would now wield a body of law designed to restrain the government to punish citizens is truly warped.  The Massachusetts case law and statutory construction is especially egregious.   In Comm. v. Hyde, decided in 2003, the MA Supreme Judicial Court held:

    Every State, with the exception of Vermont, has some type of eavesdropping or wiretapping statute. The majority contain language that, to some degree, prohibits only the surreptitious recording of another's words when spoken with a reasonable expectation of privacy. .... We conclude that the Legislature intended [the statute], [to] strictly to prohibit all secret recordings by members of the public, including recordings of police officers or other public officials interacting with members of the public, when made without their permission or knowledge. .... [W]e would render meaningless the Legislature's careful choice of words if we were to interpret `secretly' as encompassing only those situations where an individual has a reasonable expectation of privacy.


    The Massachusetts eavesdropping statute, enacted in 1968, was the state's response to the Supreme Court's landmark 1967 rulings in two separate cases (Berger and Katz), in which the Warren court held for the first time that government wiretapping requires a warrant based on probable cause.  In other words, government wiretaps by the police and FBI "triggered" the law.  A brief review of the Massachusetts wiretapping statute reveals that roughly 90% of its provisions apply to police wiretapping.  That cops would use the same law to prevent citizens from recording official government activity, conducted in public, is both warped and seriously out of touch with the times, given that a plain reading of the statute and caselaw suggests that recording anyone's words on your cell phone on a busy street and posting the recording to YouTube is a felony.

    Of course, nobody thinks of it this way because at this point, the only group that is prosecuting people for recording actions taken by people in the plain view of others in the street are cops who have been recorded.  

    Who needs ACLU? (2.00 / 1) (#35)
    by diogenes on Thu Jan 27, 2011 at 03:53:12 PM EST
    The legislature and governor of Illinois can easily repeal this law if they see fit.

    So don't worry your wonderful minds (5.00 / 1) (#36)
    by Harry Saxon on Thu Jan 27, 2011 at 04:06:54 PM EST
    about the possibility that it may be unconstitutional to prevent citizens from recording abuse by LEO officers.

    See CA law, found to be unduly (none / 0) (#37)
    by oculus on Thu Jan 27, 2011 at 09:59:17 PM EST
    burdensome on freedom of speech.  It used to be a crime to file an frivolous lawsuit against a law enforcement officer.

    alabama citizens' defense (none / 0) (#1)
    by jeffinalabama on Thu Jan 27, 2011 at 07:46:47 AM EST
    and it has proved well in the past, is that for instance, "I knew I was taping it. If the police didn't, not my problem." The issue comes in 3rd party areas in this state.

    Does not look like NC is that bad (none / 0) (#2)
    by Buckeye on Thu Jan 27, 2011 at 08:08:52 AM EST
    unless I am reading it wrong.

    this is scary (none / 0) (#3)
    by Capt Howdy on Thu Jan 27, 2011 at 08:34:41 AM EST
    but I have to say from my experience so far with Illinois police they are some of the nicest and most reasonable I have ever dealt with.

    perhaps I have just been lucky.

    ALabama police are nice to old (none / 0) (#4)
    by jeffinalabama on Thu Jan 27, 2011 at 08:51:24 AM EST
    fogeys like me, but to people of color or people in their 20s or younger, or people who look poor?

    Or people who are driving while appearing Latino...

    not so much.


    I dont think that is the case here (none / 0) (#5)
    by Capt Howdy on Thu Jan 27, 2011 at 09:06:43 AM EST
    I have talked to others, some of color, who have had not unpleasant encounters with police.

    of course we are not in a real urban setting.  I would not necessarily expect chicago cops to be the same as central illinois state cops.


    When I was with the Tempe PD, (none / 0) (#7)
    by jeffinalabama on Thu Jan 27, 2011 at 09:09:22 AM EST
    our philosophy was one of civility, not necessarily authoritarianism. But didn't that ex-cop get 4 years for inducing confessions come from Chicago?

    // I need to slow down, I might be blog-clogging today.


    an example (5.00 / 1) (#8)
    by Capt Howdy on Thu Jan 27, 2011 at 09:26:40 AM EST
    I go fast.  I just do.  I walk fast, talk fast and type fast.  and drive fast.

    I was stopped for going 96.  the cop said "you know if you are stopped going more than 30 miles an hour over the speed limit you HAVE to go to court, so I am going to say you were going 94".


    This is an attempt to protect (none / 0) (#6)
    by jeffinalabama on Thu Jan 27, 2011 at 09:07:38 AM EST
    improper acts and statements by people in power. the side benefits? I'm honestly not sure. I speak in public and blog daily, so my words are out there. Unless someone wants prurient or salacious comments... no, I say and blog those, also.

    Protection from power? you were nice while you lasted.  I guess I can have neighbors and friends arrested for videotaping my antics at parties now.

    Can some legal mind explain this one to me? (none / 0) (#10)
    by Saul on Thu Jan 27, 2011 at 09:38:53 AM EST
    This is from the list Jeralyn linked.
    This is for my state of Texas.

    So long as a wire, oral, or electronic communication--including the radio portion of any cordless telephone call--is not recorded for a criminal or tortious purpose, anyone who is a party to the communication, or who has the consent of a party, can lawfully record the communication and disclose its contents. Texas Penal Code § 16.02.

    Can someone explain the part above "is not recorded for a criminal or tortious purpose"

    not a lawyer (none / 0) (#11)
    by Capt Howdy on Thu Jan 27, 2011 at 09:40:26 AM EST
    but I would say it means its not going to be used in any legal way.

    Don't know Texas law, but ... (none / 0) (#23)
    by Yman on Thu Jan 27, 2011 at 10:25:50 AM EST
    ... judging by the language in the statute you provided, it sounds like it's permissible to record someone and disclose the contents of the recording unless you're doing it to commit a crime or tortious act.  For example, recording a conversation in order to blackmail someone would be for a criminal purpose, and thus not permitted by the statute.  A "tort" is (generally) causing harm to someone by way of breaching a civil duty owed to that person (i.e. battery, trespass, medical malpractice, breach of contract, etc.).  So if you recorded a conversation for the purpose of invasion of privacy, defamation, etc., this recording would also not be permitted by the statute.

    tough one (none / 0) (#20)
    by CST on Thu Jan 27, 2011 at 10:11:58 AM EST
    In MA it's illegal to record anyone without their consent, law enforcement or no.  $10,000 penalty or 5 years in prison (hey... at least it's not 15?).

    Interesting article in the globe about this issue.  Apparently there have been a lot of court cases about it, and the law in MA is a bit more specific, in that it states you cannot tape someone without their consent, unless it's obvious that you're taping them (not verbatum).  So the way the court cases have played out, is that if you're being obvious about it, you're probably ok, but if you're hiding the camera or mic, than that's illegal.

    "Jeffrey Manzelli ... was convicted of illegal wiretapping and disorderly conduct for recording MBTA police at an antiwar rally on Boston Common in 2002. Though he said he had openly recorded the officer, his conviction was upheld in 2007 on the grounds that he had made the recording using a microphone hidden in the sleeve of his jacket."

    "Charges of illegal wiretapping against ... Emily Peyton were not prosecuted, however, because she had openly videotaped police arresting an antiwar protester... Likewise with Simon Glik and Jon Surmacz; their cases were eventually dismissed, a key factor being the open way they had used their cellphones."

    May sound silly but (none / 0) (#24)
    by NYShooter on Thu Jan 27, 2011 at 10:29:48 AM EST
    Does this mean that if you snap a picture of a beach, and its frolickers, from your hotel window, that's technically illegal?

    not silly (none / 0) (#31)
    by CST on Thu Jan 27, 2011 at 11:00:02 AM EST
    This makes it sound like that's ok, so long as you are not trying to hide the camera.

    If someone notices enough to make a complaint, than you were also being obvious enough about it that it should be legal.  I think.


    and sometimes things happen (none / 0) (#32)
    by Capt Howdy on Thu Jan 27, 2011 at 01:47:35 PM EST
    that put your own problems with law enforcement in perspective:

    Ugandan Gay Rights Activist Is Beaten to Death

    A few months ago, a Ugandan newspaper ran an anti-gay diatribe with Mr. Kato's picture on the front page under a banner urging, "Hang Them."

    On Wednesday afternoon, Mr. Kato was beaten to death with a hammer

    oops (none / 0) (#33)
    by Capt Howdy on Thu Jan 27, 2011 at 01:48:02 PM EST
    intended for open

    and I left out the police part (none / 0) (#34)
    by Capt Howdy on Thu Jan 27, 2011 at 02:00:03 PM EST
    Police officials were quick to chalk up the motive to robbery, but the small and increasingly besieged gay community in Uganda suspects otherwise.