Often, You Can Film Cops; Just Don't Record Them

toggle caption Cheryl Corley/NPR

If the government can record citizens, why can't citizens record the government? That's the question posed by a Chicago artist who faces prison for recording the sound of his own arrest.

It's generally legal to videotape an on-duty police officer in public, but in some states, recording audio of what an officer says can be a serious crime.

This Chicago case, in which an artist is charged with violating the state's eavesdropping law, actually began as civil disobedience.

As a group of kids drummed on buckets on Chicago's State Street late last December, Chris Drew stood nearby. On the crowded sidewalk, Drew was dressed for attention, wearing a blazing red poncho covered with art patches that he was selling for a dollar each.

Drew is a free-speech advocate; his State Street appearance was part of an ongoing protest against a Chicago law restricting where artists can sell their wares. A Chicago police officer noticed Drew in the off-limits area, and told him to move along.

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Drew was hoping to get arrested to test the city's law; he got his wish. Prosecutors charged him with two misdemeanors. He was not expecting what came next. After police found a small recording device in his belongings, Drew was charged with a felony for violating the Illinois eavesdropping law, which requires all involved to consent to any audio recording.

Taping Laws, By State The Reporters Committee for Freedom of the Press offers a summary of tape-recording laws. On Phones And Elsewhere: 'Can We Tape?'

"And shortly after, they put a bond of $20,000 on me for selling art for a dollar on State Street and audiotaping my own arrest," Drew says.

The misdemeanor charges were dropped, but the felony charge remains -- and with it, a possible four- to 15-year prison term.

Mark Donahue, the head of the Chicago Police Union, says the officers simply enforced the law. And changing the law, he says, could hamper police work, and cause some officers to hesitate on the job.

"You don’t want that hesitation," he says. "You want them to act on their instincts, and their training as well."

If officers think they're being recorded, Donahue says, "they think there's an extra Big Brother over their shoulder that will judge them 10 minutes, 10 days, 10 years down the line, on the action or utterances they're making today."

Eavesdropping and wiretap laws were designed to protect private conversations. So the question becomes, what's private and what's not?

In 12 states, including Illinois, recording the audio of an on-duty officer in a public place without consent could be considered illegal.

Perceived violations are likely to be played out in court, such as in a case in Massachusetts.

Three years ago, lawyer Simon Glik flipped open his cell phone and recorded Boston police officers as they used what Glik considers excessive force in an encounter with a young man.

Glik was arrested after an officer asked if he had recorded any sound and Glik answered that he had.

Sarah Wunsch, an attorney with the Massachusetts ACLU, says the state law is not being interpreted correctly.

"To say that in the United States of America, this would be considered a crime -- to record if there's any sound attached to it -- is crazy," she says. "If the police can record a stop, the ordinary citizen needs to be able to observe and record what's going on in a public place. There is no right to privacy of the police officers in that context."

In another controversial case, motorcyclist Anthony Graber, 25, was speeding on an interstate in Maryland earlier this year. With his helmet camera rolling, he sped and popped wheelies on Interstate 95, near his Baltimore home.

When Graber came to a stop at an exit, a state trooper in plainclothes and an unmarked car blocked his access and approached him, gun in hand, ordering him off the bike.

Graber was ticketed, but after he posted the encounter on YouTube, authorities got a warrant, seized his camera and computers. Harford County Prosecutor Joseph Cassilly charged Graber with three felonies for violating the state's wiretap law.

Even so, Cassilly says that he disagrees with the law. Calling it too broad, he says that its criminalizes the conduct of citizens. But, he says, there is another side to consider.

"Police officers need to do a job where often they need to take statements or information from people," he says, "that are reluctant to talk to the officer, or reluctant to give information to the officer."

And that, Cassilly says, means police conversations with witnesses or victims should be private. He suggests, along with others, that Maryland's eavesdropping law be rewritten.

An attempt to revise the Illinois statute failed a few years ago. Now it's being challenged in federal court.

The law is unconstitutional, says Harvey Grossman of the Illinois ACLU.

"The general theme that drifts through these cases is very clear," Grossman says. "Law enforcement, in these instances, is rebelling and is refusing to allow public scrutiny of their behavior. And they are using the eavesdropping statute as a weapon against civilians."

With the proliferation of cell phones and ever-smaller recording devices, more cases involving who gets to record what's said between police and civilians will very likely end up in court.