(update below)

This past Sunday Occupy Chicago held a march in solidarity with Occupy Oakland after Oakland police fired various crowd-dispersal weapons at them and arrested hundreds. They marched in the evening through downtown. Like other Occupy groups, they had a person live streaming the action, Keilah [@OccupieChicago].

Keilah ran into harassment when the march was across the street from the Chicago Theatre. A police officer with the last name “Osbourne” came over and pinned Keilah down. She was unable to escape the officer as he took her cell phone that she had been using to stream the action and deleted the video she had been recording with her phone. The officer informed her that he had done this under the Illinois Eavesdropping Act and the march continued. She was also told she could have been charged with a Class 4 felony for recording the march.

The incident was captured on video. If you watch, you can see how ridiculous this law is because there were others streaming and recording police without their consent. This is the problem – innovation and the proliferation of technology means the law is largely impossible to enforce fairly during protests. That means arbitrary enforcement is inevitable, meaning police know someone captured footage they don’t want to see end up on YouTube and they use the law to crack down on someone.

The incident is one of many that have occurred in Illinois under the eavesdropping law, which has been in effect since the act was amended in 1994 to include all conversations recorded without consent. The incident shows how the eavesdropping law undercuts transparency and violates the civil liberties of people in Illinois. And, the incident suggests a key problem lies ahead for the Occupy movement when it comes to Chicago in May to “occupy” the city during the NATO/G8 meetings.

Will people of the world be able to view audio and video from the scene or will police be confiscating, deleting or seizing recordings of the protest because they are present? Or, worse, will police be arresting people and charging them with felonies for recording police as they engage in “crowd control” and inevitably maneuver to disperse or make arrests of protesters?

Currently, as Jacob Sullum wrote in a post for Reason last year, the eavesdropping act “allows police officers to make audio recordings of their encounters with citizens but forbids citizens to do the same without permission. Recording police, prosecutors or judges is a Class 1 felony with a maximum sentence of 15 years, while recording anyone else is a Class 4 felony with a maximum sentence of three years.” [This means one can stream video without audio but cannot stream both, especially if police are in the frame.]

There is an exemption, however. If someone has reason to believe a crime might be committed, a person in Illinois is permitted to record without the other’s consent. The exemption is why Tiawanda Moore was acquitted last year after she was charged with “using her BlackBerry to secretly record two Chicago Police investigators in 2010.”

The Sun-Times wrote in an editorial calling on Illinois to reform the eavesdropping law: “By taping the officers, Moore ran afoul of the Illinois Eavesdropping Act , which prohibits the recording of private or public conversations without the consent of all parties. “ Moore believed the investigators would coax her into not going forward with a “sexual harassment complaint against a different officer.” She thought this might entail something illegal and so she was found to be within her right to record the meeting without the consent of the investigators.

Would live streamers be able to escape felony charges if they argued they thought police might do something illegal? A judge would likely submit to the idea that some actions might happen that would be illegal but, since the streamer would likely be streaming constantly during all periods of the protest, he or she would not be exempt because a judge would never accept the idea that police forces on duty would be violating the law every minute during the protest. Therefore, to challenge a felony charge in court, a live streamer would need to have been only recording when he or she thought the police were engaged in lawless conduct.

This isn’t the only way the eavesdropping law is suppressive. Two ordinances just passed in the Chicago City Council. One of them granted the city of Chicago under Mayor Rahm Emanuel permission to expand surveillance of downtown Chicago in the run-up to the meetings. The ACLU of Illinois challenged the expansion, which the ordinances would allow:

The ACLU explained that the proposals continue to contain an ominous provision – the ability of the Mayor to purchase and deploy powerful surveillance cameras across the City without any approval or any oversight. Nearly a year ago, the ACLU of Illinois released a report noting that Chicago’s surveillance camera system – widely recognized as the most expansive and most integrated system in the nation – acts without any public regulation to protect individual privacy. The ACLU called on the City to put a hold on deploying new cameras until the City Council could adopt regulations that require reasonable suspicion before the cameras’ most powerful technologies (zoom, tracking and facial recognition) are used. The ACLU report also called for the City Council to adopt a specific policy on the retention and dissemination of images captured by the cameras.

It is profoundly totalitarian that, if the law is not changed before the NATO/G8 meetings, a person in Illinois would be subject to surveillance in downtown Chicago that included facial recognition and tracking, the city would be permitted to retain and disseminate any images captured but those at protests would be restricted in their use of audio and video technology because they would not have the consent of police and others in Illinois to record them.

There could be hundreds of journalists, who come to Chicago to cover the protests in May. Violations of press freedom have taken place with at least 60 journalists, including “citizen journalists,” being arrested while reporting. None at this point have been charged with felonies. That could change.

Surprisingly, Chicago police superintendent Garry McCarthy, who warned protesters back in July police would be “ready” to make “mass arrests” during the NATO/G8, sympathizes with those who find the eavesdropping law to be repressive. He came out in support of amending the eavesdropping law yesterday and said, “I actually am a person who endorses video and audio recording…There’s no arguments when you can look at a videotape and see what happened.”

The eavesdropping law apparently prevents police officers from recording audio when they inform protesters that they are under arrest. McCarthy, who previously served as a “police official” in New York and New Jersey, was taken aback when he realized there was a law on the books that prevented him from hearing officers give warnings to Occupy Chicago protesters that were arrested in an act of civil disobedience in Grant Park:

“The first night, after we made 147 arrests, the goal was to assure that what was recorded was the fact that, ‘Excuse me, sir, you are in violation of the law; You are about to be arrested; You have the opportunity to leave. If you choose to leave, you can leave now. If you choose to stay, you will be arrested.’ Which was the warning that we gave every single one of the 147 people that were arrested that night,” McCarthy told a panel at Loyola University on Wednesday.

“The next day, I said, ‘Let me see the videotape.’ All I saw was this:” McCarthy pantomimed officers mouthing words to protesters.

“This is a foreign concept to me,” McCarthy said. “This is problematic, because the idea was to show exactly what we were doing was giving people warnings . . . It was an enlightening moment for me. . . . Illinois is the only state in the union that has such a law.”

The ACLU of Illinois has been opposing this “application” of the Illinois Eavesdropping Act since August 2010. The organization “brought the case” because the organization frequently monitors “police behavior and would like to make audio recordings of police in performing their public duties.” The organization contends the ACLU has a “First Amendment right to gather this information, disseminate that information to the public and with courts and government agencies in petitioning for redress of grievances.”

The original complaint filed by the ACLU of Illinois notes the benefits of recording. It states, “Federal, state, and local law enforcement agencies have deployed tens of thousands of audio/video recording devices for purposes of documenting certain interactions between police officers and civilians.” Police squad cars have “audio/video recording devices” to “document traffic stops.” The eavesdropping law exempts conversations recorded at traffic stops between police and civilians, which is likely unconstitutional.

It goes on to call the eavesdropping law “abnormal” because most state bans “extend only to private conversations.” Few states “extend their prohibitions to open and obvious recording, as opposed to secret recording.”

The complaint argued, “Police officers performing their public duties in public places, and speaking at a volume audible to the unassisted human ear, have no reasonable expectation that the words they speak are private and will not be recorded, published, and disseminated.” This is probably true in most states, except Illinois. Officers enjoy the luxury of being able to tell individuals to turn off devices whenever they please so they can prevent scrutiny for any actions that might occur when the devices are off.

A particularly egregious case in Illinois forms part of the backbone for the ACLU of Illinois’ challenge to the law. In December 2009, artist Chris Drew, who has a history of challenging the city’s restrictions on the selling of art, was peddling silk-screened patches for $1 in an act of civil disobedience. A First Amendment lawyer and a team of photographers filmed his arrest. The police let the filming go, and Drew was arrested. When it was time for Drew to face his charges, he found he had been given a Class 1 felony charge for violating the Illinois Eavesdropping Act and filming his arrest. This meant he faced a possible sentence of fifteen years in prison. [Drew is still challenging the felony charge in court.]

The Illinois Eavesdropping law has not been hugely popular among people in Illinois, who know how it can be used to prosecute people unfairly. But, for police, it has been one of the best reasons to be a police officer in Illinois. It makes it possible to go after people who record them (people, as they say, who would “selectively edit” footage to make it seem like police brutality happened). It lessens the possibility of police being entangled in police misconduct cases, which is important for the city. From 2000 to October 2007, the city paid out $126 million to settle police misconduct cases. And, currently, the city of Chicago is moving to settle lawsuits for arrests during a 2003 protest against the Iraq War, where protesters were corralled and trapped on Lake Shore Drive. Individuals could receive $10,000-$20,000 each.

The Chicago G8 and Host Committee and the Emanuel Administration might enjoy the luxury the eavesdropping law could provide. It would likely mean fewer lawsuits against police brutality and misconduct during the NATO/G8 meetings. The law certainly means the officers have much more leeway to seize equipment and technology from people and erase footage. Few people will probably record only video at the protests.

Also, one could claim when confronted by an officer that they were taking only video but the officer would have to believe the person saying that. Wouldn’t police likely err on the side of caution and just delete any footage they could if they saw someone recording? As officers like to say, “The law is the law.” They would just be “doing their job.”

Illinois State Rep. Elaine Nekritz is working to get legislation that would amend the law and “allow citizens to record officers who are on-duty in a public place.” This would make it nearly impossible for police to justify publicly any interference with live streamers, who were recording protest action in Chicago. If passed before the NATO/G8, live streamers or anyone found by police to be recording audio during the meetings would have no reason to fear being slapped with a felony charge.

Update

Occupy Chicago tweets this op-ed from law professor Jonathan Turley on the public’s right to record, who wrote, “Without video Rodney King would have been another guy with a prior record claiming abuse.” Turley’s op-ed, published in November of last year, reports how a judge has treated the ACLU’s challenge to the eavesdropping law:

The ACLU lawyer had uttered just 14 words when Posner barked: “I’m not interested, really, in what you want to do with these recordings of peoples’ encounters with the police.” Posner then added his concerns about meddling citizens: “Once all this stuff can be recorded, there’s going to be a lot more of this snooping around by reporters and bloggers…. I’m always suspicious when the civil liberties people start telling the police how to do their business.”

Many judges may privately share Posner’s view of such confrontations. And the near-total silence of politicians in dealing with the question of the public’s right to record what they see and hear suggests that many legislators may also find these cases inconvenient.

*

The Atlantic Wire reports the New York Times is again fuming because the NYPD continues to violate freedom of the press by obstructing reporters and photojournalists trying to do their job. It reports on Robert Stolarik, who was blocked from taking a photo during Occupy Wall Street’s action in solidarity with Occupy Oakland on Sunday.

Stolarik told The Atlantic Wire on Wednesday that after two officers put their hands in front of his camera lens, a sergeant told him they had every right to do so, since he was shooting while an arrest was in progress. The arrest, he said, was messy. “It was an un-badged officer who was making the arrest. He didn’t identify himself as an officer, and he threw a girl to the ground,” Stolarik said. The officer “was in plain clothes. The girl didn’t do anything, so maybe they just didn’t want it to be documented.” When Stolarik tried to photograph it, “one officer had his hand on the lens of my camera, pushing it down.

The Atlantic Wire notes Stolarik has had problems with police before. And, last time, the obstruction he experienced was caught on video. That video pushed the NYPD to do the only full investigation it has done into a “case of interfering with the press.”

Here we see why it is so important for citizens to have the right to record. One video, in today’s media economy, has the power to go up online, get thousands and thousands of views and force a police department to admit it committed violations and was wrong. Without the video, a police department can continue with business as usual like nothing happened.