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In Lead-Up to Mass Protests in Chicago, Illinois Ban on Recording Police Challenged

G8/NATO protests "that are almost certain to be countered with excessive police force will be illegal to record"

- Common Dreams staff

As Chicago prepares for thousands of protesters and journalists for the G8 and NATO summits this May, an Illinois law declaring a felony the audio recording of police officers is coming under the microscope. One representative has filed an amendment to allow for such recordings, a move protesters, who will likely be met with heavy-handed tactics from police, would welcome.

Under the current Illinois Eavesdropping Act from 1961, a person recording a non-consenting police officer can be charged with a felony and 15 years in prison. The Huffington Post explains:An Illinois law declaring a felony the audio recording of police officers is coming under the microscope. (photo: Paul Stein)

The Eavesdropping Act makes recording officers without their permission a Class 1 felony, but has been inconsistently applied by different sectors of the justice system who disagree on its merits, particularly in cases where audio spotlights police wrongdoing. In the recent high-profile case of Tiawanda Moore, who recorded police officers trying to talk her out of filing a complaint after she claimed she was sexually harassed by an officer, a jury acquitted her and called the county's charges against her "a waste of time."

An amendment to the law submitted by Rep. Elaine Nekritz would allow for the recording or police officer on duty in public place. The Daily-Journal reports:

House Bill 3944, sponsored by Rep. Elaine Nekritz, D-Northbrook, would amend the Illinois Eavesdropping Act, under which a member of the public can be charged with a felony if he or she records the conversations of police officers, prosecutors and other law enforcement personnel without their knowledge. [...]

Nekritz said her legislation would "allow citizens to do what they think they already had the ability to do."

The amendment has an unlikely ally, Chicago Police Superintendent Garry McCarthy. The Huffington Post reports on McCarthy's stance:

"As far as the use of videotape, I certainly endorse it, for the protection of the police as well as [civilians]," he said at the panel. "There's no argument when you show videotape and can look at what happened. I actually am a person who endorses video and audio recording."

McCarthy, who came to Chicago from New York, said video and audio recordings helped prove officers acted appropriately amid allegations of brutality following a series of protest arrests. He added that this material could be equally useful as police prepare for massive crowds of protesters when Chicago hosts the NATO/G8 summits this spring. McCarthy clarified that it's not his job to advocate for policy changes, according to CBS Chicago, but called objections to covert recordings of police interactions a "foreign concept" after finding the practice helpful during previous stints in other cities.

As WLS-Chicago reported in September, the ACLU says the current law "doesn't make any sense":

The ACLU argues that the Illinois Eavesdropping Act is antiquated and overly-restrictive, and it wants the ability to record audio of police officers when they're on the public way - most specifically as a means of monitoring how police handle marches and demonstrations.

"You can video the police officer, you can photograph the police officer. They admit that you can listen to the police officer, and even write down what the police officer is saying, but you can't turn on the audio button. It simply doesn't make any sense," said Harvey Grossman, ACLU.

RT notes how the law, if it remains unchanged, will affect the Chicago Police Department and protesters:

...the protests that are almost certain to be countered with excessive police force will be illegal to record.

Some state lawmakers are trying to overturn the legislation before this spring, but it is a challenge that stands to be complicated with a goal only a few months into the future. Illinois Attorney General Lisa Madigan has asked the state Supreme Court for a new decision on the constitutionality of the law and others have come to her side. Some have even proposed an exception that will allow citizens to record the police, which is allowed in most jurisdictions in America.

"I don't believe there is an expectation of privacy for public officials on public property doing public duties," Rep. Elaine Nekritz, a local sponsor of the re-write, tells the Associated Press.

The US Court of Appeals in Boston, Massachusetts countered a similar wiretapping law last year, with a judge ruling in August that filming the police is a “basic and well-established liberty safeguarded by the First Amendment.”

Many outside of Boston agree, and if the law isn’t changed in Illinois before spring, Chicago’s G-8 summit is expected to still be caught on film, law notwithstanding. But as thousands plans to flood the streets of the city to demonstrate against the meeting of leaders from the US, France, Russia, Italy and elsewhere, cops will be tasked with countering not just riled protesters, with journalists of all sorts gripping their cameras. Come springtime, the Chicago PD will have to determine which First Amendment guarantee is more important to crush: the freedom of the press or the freedom to assemble.

Christopher Drew, an artist in Chicago who recorded his own arrest, now faces 15 years in prison and spoke to RT about his situation:

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