“For years, [Illinois] cops used the state’s eavesdropping laws to arrest citizens who attempted to record them. This practice finally stopped when three consecutive courts — including a federal appeals court — ruled the law was unconstitutional when applied to target citizens recording public servants.” But the law is “still being used by government officials to punish people they don’t like. Illinois Policy reports a 13-year-old student is facing felony charges for recording a meeting between him and two school administrators.” [Tim Cushing, TechDirt; Austin Berg, Illinois Policy, related]
7 Comments
A lot of these laws tracked the “reasonable expectation of privacy” standard found in Katz. That standard doesn’t work well with government officials (or two party consent rules, for that matter).
I don’t know that, as a policy matter, we want principals to be recorded by children in school (or the recording of fellow students, by the way) without consent. But it seems difficult to say that government officials, in the performance of their duties, have any expectation of privacy. There’s another issue–given our litigious society–to the extent something could go to litigation, a recording is clearly “best evidence” (I know–it’s a bit of a misnomer.) of what was said. When dealing with a government official–where rights are at stake, isn’t there a good argument for the right to record?
I would like to see something showing how many 13 year olds know there are any laws at all about recording conversations you are personally involved in. I would be willing to bet a very large percentage either don’t know there are laws at all or don’t have an accurate understanding as to what is forbidden in their states.
What ever happened to the Juvenile justice system? The 21 drinking age exists because people under 21 are supposedly not responsible enough to handle alcohol, but, a 13 year old is supposed to know the ins and outs of the eavesdropping laws. I’m all in favor of the kid recording any disciplinary conversations unless a parent or guardian is present.
To blhlls and jimc5499 – ignorance of the law is rarely an effective excuse.
To SPO – there are many things government officials do that should be immune from recording, such as counseling students and employees, or preliminary investigations into misconduct. That’s why we have laws such as HIPAA and FERPA.
“ignorance of the law is rarely an effective excuse.”
It’s a very effective excuse, if you are a law enforcement officer.
Phil,
A person who is the subject of the conversation should never be barred from recording anything that is said. Neither HIPAA nor FERPA prevents such a recording. Both laws prevent the disclosure of information by government and other actors, but not disclosure by the affected party.
In this particular case, the behavior of the two administrators is suspect to me. The administration had two people there – the principal and the assistant principal who would obviously back each other up if there was a question of what was said.
The kid has no such witness.
So if the principal made a statement that threatened the kid with violence or something against school policies, the two officials could say that the kid was making it up. The kid having a recording puts the two parties on equal footing as to proof or what was said.
Obviously this kid is no saint, but at the same time, the administrators walked away when they found out they were being recorded. I wonder why that is? Instead of a “teaching moment” of “you can’t record without our permission as it is a felony,” the administrators went straight to warp speed and pressed charges.
Government officials in the performance of their official duties should never be barred from being recorded.
Phil,
That may have been true back when the law was simpler and based on common sense. These days I’m not so sure. The law has become so convoluted that even Judges sometimes can’t comprehend it, let alone a 13 year old.