Eavesdropping Laws Need to Be Updated to Account for Smartphones

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police recording
Another example of just how outdated these recording laws are: police departments in other states are creating their own apps that directly violate the eavesdropping laws of other states.

There is a growing trend of recording and reporting incidents by the public via smartphones/mobiles these days. The trend covers events such as the police killing a man near the BART system, a plane crashing in the Hudson, tragic moments from the Iranian elections, and countless more. Recording the world around you has become commonplace in today’s society. Just take a look at the site CrowdReel, which publishes pictures from Twitter streams around the world.

Recently, a case has brought to light outdated eavesdropping laws in Illinois and 11 other states. The case involves two individuals who recorded public officials (one of which used her BlackBerry) because they wanted a record of what was said for their own personal protection. This act landed them potential sentences of 15 years in prison (the sentence is much greater when it involves a public official versus a civilian).

In Canada, a lawful party to a call that starts and ends in Canada can record that call if they are doing so for a personal or journalistic reason and not a commercial purpose (via @privacylawyer). The reason for this is straight forward: it’s natural to want to record instances where you feel threatened, and if you’re in public, you have a reasonable expectation of being photographed/recorded. By making it illegal to record a public official unless they give consent, you’re not allowing the public to adequately protect themselves against someone who may be abusing their power.

Reason Magazine, a libertarian publication, sums up the situation nicely:

Police across the country are using decades-old wiretapping statutes that did not anticipate iPhones or Droids, combined with broadly written laws against obstructing or interfering with law enforcement, to arrest people who point microphones or video cameras at them. Even in the wake of gross injustices, state legislatures have largely neglected the issue. Meanwhile, technology is enabling the kind of widely distributed citizen documentation that until recently only spy novelists dreamed of. The result is a legal mess of outdated, loosely interpreted statutes and piecemeal court opinions that leave both cops and citizens unsure of when recording becomes a crime.

It’s about time that these states wake up to the pace of technological change. Eavesdropping laws need to be interpreted in a way that balances the original intent with today’s smartphone reality.