The distinction between evidence and eavesdropping got a little clearer this morning, when a Chicago judge declared unconstitutional an Illinois law used to punish people who audio- or video-record police in action.
In most places within the U.S. the First Amendment protects anyone making audio or video recordings of things they can see or hear while not committing other crimes.
If police pull over a car in the street in front of your house, for example, it's perfectly legal for you to stand there and watch, especially if you remain in your own yard.
In most places it's legal even to video-record things going on in your neighbor's house if you're on your own property and minding your own business while you do it.
One of the most common questions student photojournalists have to deal with during ethics classes is when it's legal to have taken a photo of a senator beating his wife inside his own house. Quick answer: If you're up a tree, in his yard or anywhere other than on obviously public property, it's illegal. If you're on the sidewalk, the senator's curtains are open and the light from inside streams out to your camera of its own free will, you're free to record the event on film.
Police, mostly on their own authority or by departmental policy, often reject those traditional views in favor of one in which any recording other than their own is considered intrusive, antagonistic and likely to product not truth and justice, but unwarranted accusations of brutality or abuse.
The Illinois Eavesdropping Statute and some other recent laws passed in other states are designed to prevent that by making an artificial connection between private or confidential conversations that participants treat as private, and events that happen in public, where any camera-phone, close-circuit security camera or satellite can record them.
Police Departments Obsessed With Who is Watching Them
Documents stolen from Arizona law enforcement agencies by hackers last June highlight the obsession many agencies have with the potential for being recorded by members of the public and possible negative consequences of it.
In Arizona, some even went so far as to list common iPhone apps designed to surreptitiously record police during arrests or traffic stops and recommend arresting officers search specifically for those apps, almost as if equipment to make a secret recording of an arrest were as dangerous to a street cop as a gun.
Most states forbid anyone from recording a private phone conversation unless at least one of the people involved in the conversation knows it's being recorded. Many states require at least two people know about the recording; some require that everyone know.
That's why, when you call your insurance company, bank or other giant corporation's help desk, a recording tells you the call may be recorded "for quality control purposes."
The call will be recorded, but for purposes of giving the company evidence of what happens during the conversation. You don't have to stay on the line if it's being recorded, but the company is off the hook for eavesdropping in almost any state after letting you know you're being recorded.
The Illinois Eavesdropping Statute stretches the boundaries of what is appropriate to overhear by making it illegal for anyone to audio- or videotape an event or conversation without the knowledge and approval of everyone involved.
It would never be prosecuted, but the law would technically make it illegal to video-record a snippet of a football or basketball game – especially recording the cheering crowd rather than the players – without getting the permission of everyone in the crowd beforehand.
Neighbor's voice caught on videotape of your kids in the backyard? That's a felony.
The Illinois Eavesdropping Statute doesn't kid around, either. Violating it is a Class 1 felony with penalties ranging up to 15 years in prison.
That's what Chicago artist and photographer Christopher Drew, 61, faced after being arrested in 2009 for selling patches on the street without a peddler's license.
When police approached, Drew, uncertain of their intentions, hit the Record button on a tape recorder in his poncho. It recorded the conversation between Drew and the arresting officer. When police found the recorder it got Drew a felony indictment for eavesdropping on a conversation in which he was a participant, the other party was a public official engaged in activity required to be treated as a public record.
“It was impossible for me to imagine a law based on privacy would make it illegal for me to tape a public conversation by a public officer on the public way who was arresting me,” Drew told the Chicago Sun-Times. “I should have the right to bring evidence into court of what that officer says to me in public.”
The judge may not have agreed with that, but certainly agreed that not every sound or image should become contraband simply for having been recorded.
"The Illinois Eavesdropping Statute potentially punishes as a felony a wide array of wholly innocent conduct," according to the decision by Judge Stanley J. Sacks. "A parent making an audio recording of their child’s soccer game, but in doing so happens to record nearby conversations, would be in violation of the Eavesdropping Statute."