The Supreme Court’s Refusal to Hear Case Involving the Illinois Eavesdropping Act

By Courtney Elliott, Albany Government Law Review

In recent years, courts have had to examine wiretap statutes in relation to recording law enforcement officers during the performance of their job duties.[1]  Most Americans now carry at least one mobile device capable of recording audio and video with the simple click of a button.[2]  Several commentators have observed that it is now common for citizens to use video cameras to document daily life, as well as police activity.[3]  On November 26, 2012, the United States Supreme Court denied certiorari in the case of Alvarez v. ACLU of Illinois,[4] leaving in place a federal appeals court’s injunction against an Illinois anti-eavesdropping law which criminalizes audio recording of part or all of a conversation unless all parties involved agree to the recording.[5]

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The Expanding Trend of Criminalizing the Recording of Police Abuse

Joseph Cucco, Albany Government Law Review Member

In 1991, a private citizen videotaped Los Angeles police officers beating Rodney King, forever changing the dynamic of citizen versus police officer.[1] Since then, technology has advanced to the stage where hand-held gadgets, such as cell phones and Blackberrys, are ubiquitous and almost every citizen is a potential videographer.  This has made cell phones and other portable recording devices an effective new weapon against police brutality and the abuse of power.  In response, police have struck back with a weapon of their own: state wiretapping and electronic surveillance laws, originally enacted to protect people from invasion of privacy.  With increasing frequency, authorities of several states are misapplying these laws to threaten and even arrest citizens who video police officers while performing their duties in plain view of the public.

One such instance occurred on March 5, 2010 when Anthony Graber, a sergeant in the Maryland National Guard, was riding his motorcycle down the highway at excessive speeds, admittedly showboating and performing dangerous stunts on a Maryland highway.[2] To record and share his antics, Graber was using a conspicuous helmet-mounted camera and continued to record as he was pulled over by a plain-clothes state trooper driving an unmarked car.[3] The plain clothed trooper cut him off, jumped out of his vehicle brandishing a weapon, and ordered Graber off the motorcycle, all before identifying himself as a state trooper.[4] Graber was cited for speeding and let go.

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