When, Where and Why the First Amendment Protects the Right to Record Police Communications: A Substantial Interference Guideline for Determining the Scope of the Right to Record and for Revamping Restrictive State Wiretapping Laws
![handle is hein.journals/stlulj57 and id is 1163 raw text is: WHEN, WHERE AND WHY THE FIRST AMENDMENT PROTECTS
THE RIGHT TO RECORD POLICE COMMUNICATIONS: A
SUBSTANTIAL INTERFERENCE GUIDELINE FOR DETERMINING
THE SCOPE OF THE RIGHT TO RECORD AND FOR REVAMPING
RESTRICTIVE STATE WIRETAPPING LAWS
INTRODUCTION
To some, if not most, [w]iretapping sounds like it should involve a man in
a headset sitting in a van listening in on your telephone calls.' However, the
legal definition of wiretapping in some states encompasses much more than
this, and even conduct the average individual does not realize is a crime.2 In
some states, it does not take a man sitting in a van with a headset to commit
wiretapping. Rather, all it takes is a Blackberry or an iPhone capable of
recording audio. The penalty for audio recording the oral communications of a
police officer in Illinois in the absence of the officer's permission: a Class 1
felony3 carrying up to fifteen years in prison.4 Recording others is a Class 4
felonys carrying a maximum sentence of three years in prison.6 The penalty in
Massachusetts for recording the oral communications of an officer in the
absence of the officer's permission: up to five years in state prison. In Illinois,
it is a crime to record the oral communications of two or more persons
regardless of whether the parties intended their conversation to be private
unless the recording party has the permission of all the parties to the
conversation. In Massachusetts, it is illegal to secretly record any oral
communication without the consent of all the parties to the conversation.9
To illustrate the problem the Illinois wiretapping law creates, take
Tiawanda Moore, age 21, who, with the help of her Blackberry, was charged
1. Rob Arcamona, Jeff Hermes, & Andy Sellars, Wiretapping, SOPA, Occupy: 2011 Was a
Tumultuous Year in Media Law, PBS (Dec. 23, 2011), http://www.pbs.org/mediashift/2011/12/
wiretapping-sopa-occupy-2011-was-a-tumultuous-year-in-media-law357.html (internal quotation
marks omitted).
2. Id.
3. 720 ILL. COMP. STAT. 5/14-4(b) (2010). Audio recording the oral communications of
public officials and judges without consent is also a Class I felony. Id.
4. 730 ILL. COMP. STAT. 5/5-4.5-30(a).
5. 720 ILL. COMP. STAT. 5/14-4(a).
6. 730 ILL. COMP. STAT. 5/5-4.5-45(a).
7. MASS. GEN. LAWS ch. 272, § 99(C)(1) (2010).
8. 720 ILL. COMP. STAT. 5/14-2(a)(1).
9. MASS. GEN. LAWS ch. 272, §§ 99(B)(4), (C)(1).
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