Man Busted For Felony Eavesdropping

[MA-Caver]

Interesting case. Like Frobe, I didn't know this law existed. Also I agree, I think it's unconstitutional.

September 27, 2011 (CHICAGO) (WLS) -- This is the story of Louis Frobe, but it's also about others who have run afoul of the Illinois eavesdropping law, one of the most restrictive of its kind in the country. It requires that all parties to a conversation give their consent before you can record legally record it.

Say you take out your smart phone and you start taking pictures of police officers making an arrest. The pictures and video are allowed by law, but you must have permission before you record the audio, even if the officer is on the public way.
"I'm just an ordinary citizen. I was on my way to the movies, and all of a sudden I'm facing a felony and 15 years in prison," Frobe told ABC7.
Frobe calls it the worst experience of his life. He was on his way to a late evening movie on an August night last year when he was stopped for speeding in far north suburban Lindenhurst. He didn't believe he was in a 35-mile-an-hour zone, and he figured if he was going to get ticket he wanted to be able to document his challenge with video evidence, so he got out his flip camera, which he was not very adept at using.
At one point he held it out the window trying to record where he was. When the officer, being recorded on his squad dash cam, walked back to Frobe's car, the officer saw Frobe's camera.


Officer: "That recording? Frobe : "Yes, Yes, I've been... Officer: "Was it recording all of our conversation? Frobe: "Yes. Officer: "Guess what? You were eavesdropping on our conversation. I did not give you permission to do so. Step out of the vehicle."

Louis Frobe was then cuffed and arrested for felony eavesdropping.
http://abclocal.go.com/wls/story?section=news/special_segments&id=8370540

This is the law on the books http://law.justia.com/codes/connecticut/2005/title53a/sec53a-189.html

Now granted I would not want anyone to eavesdrop on what may be a private conversation I'm having with anyone else. But if I was worried about that I would take steps to ensure that nobody can to the best of my ability. If I'm in a public place and someone is eavesdropping then I can't help it, I either get up and move or change the subject or simply stop talking until I get to a point where I can talk about it without anyone else nosing in.
I think that we the people should have the same rights accorded to LEO's and their dashboard cameras and microphones so that at least we have a copy and our own means of presenting evidence. If the guy asked the cop for permission first (had he known that he needed to do so) would he'd been granted? Or would that have opened a whole new can of worms in that simple traffic stop. Yeah, no traffic stop is merely simple.

 

[Carol]

There's a good bit of discussion here on two-party consent, which is present in (I believe) 12 states, including MA and NH up my way.

WLS makes a very common mistake. All party consent does NOT mean all parties must give permission. This is consent by legal definition, not by conversational definition. Consent means all parties to the conversation must be ADVISED that they are being recorded. Not that they must get permission. Most likely the motorist would have avoided a heap o' trouble by simply saying something like "You're being recorded", or "I'm recording this" in a clear voice.

 

[Bill Mattocks]

I believe this particular guy's situation has been posted in other threads here on MT, but yes, I have a problem with this ancient eavesdropping law being interpreted this way in Illinois - apparently for the explicit reason of stopping people from recording the police.

In the USA, our public officials, including police, are not secret. They are not wearing black hoods (on their daily routine) or blacked-out name badges. In fact, their badges have numbers and they DO wear nametags for a reason; they are accountable for their actions.

In general, our laws have long held that a person in public HAS NO LEGAL EXPECTATION OF PRIVACY. That's not to say that it is not rude to take photos or video of a person who doesn't want to be recorded; it does mean that it is generally LEGAL to do so. And that means the police too.

They can record us - most do these days with dashboard cameras and now with other forms of recording device:

http://www.sacbee.com/2011/09/30/3950496/bart-tests-police-cameras.html

BART tests police cameras
The Associated Press
Published: Friday, Sep. 30, 2011 - 6:52 am
Last Modified: Friday, Sep. 30, 2011 - 7:01 am

OAKLAND -- Bay Area Rapid Transit police are testing six, clip-on video cameras that are intended to record officers' interactions with people in the field.

I contend that if it is not illegal for police officers to video ME, then it is not illegal for ME to video THEM. They do not have special powers, they're not secret agents.

 

[MA-Caver]

There's a good bit of discussion here on two-party consent, which is present in (I believe) 12 states, including MA and NH up my way.

WLS makes a very common mistake. All party consent does NOT mean all parties must give permission. This is consent by legal definition, not by conversational definition. Consent means all parties to the conversation must be ADVISED that they are being recorded. Not that they must get permission. Most likely the motorist would have avoided a heap o' trouble by simply saying something like "You're being recorded", or "I'm recording this" in a clear voice.

Well yeah, had the guy been aware of the necessity of doing so. But as he stated in the vid he wasn't even aware that what he was doing could be construed illegal. The old saying goes "ignorance of the law is no excuse"... that may be so... if there weren't so many fricken laws out there to try and remember. It's a question of course if the Frobe was truly ignorant of the eavesdropping law or is just saying that he didn't know.

 

[jks9199]

Interesting case. Like Frobe, I didn't know this law existed. Also I agree, I think it's unconstitutional.


Now granted I would not want anyone to eavesdrop on what may be a private conversation I'm having with anyone else. But if I was worried about that I would take steps to ensure that nobody can to the best of my ability. If I'm in a public place and someone is eavesdropping then I can't help it, I either get up and move or change the subject or simply stop talking until I get to a point where I can talk about it without anyone else nosing in.
I think that we the people should have the same rights accorded to LEO's and their dashboard cameras and microphones so that at least we have a copy and our own means of presenting evidence. If the guy asked the cop for permission first (had he known that he needed to do so) would he'd been granted? Or would that have opened a whole new can of worms in that simple traffic stop. Yeah, no traffic stop is merely simple.

In many two party consent states, the officer is required to advise you that he is recording the encounter. It's done quickly and automatically; "I'm Officer Copper; this is being audio and video recorded." In others, they are granted an exception by statute. I don't know what they'd do if someone stated "I don't consent to the recording." Be interested in hearing if anyone knows...

 

[Bill Mattocks]

In Illinois, like any state, the media takes video and audio recordings of people in public all the time; including recording police and elected officials. They do not ask for permission. The media, as it has been established, is not a protected class of citizens. In fact, anyone is media if they say they are. WGN and WLS don't get permission before they shove their microphones in Mayor Daley's face. When they get arrested and charged, then I will believe this is not arbitrary prosecution for the purpose of stifling citizen journalism.

 

[Carol]

In many two party consent states, the officer is required to advise you that he is recording the encounter. It's done quickly and automatically; "I'm Officer Copper; this is being audio and video recorded." In others, they are granted an exception by statute. I don't know what they'd do if someone stated "I don't consent to the recording." Be interested in hearing if anyone knows...

I'm not sure what they would do from a procedural standpoint, but to my not-an-attorney eyes, that would still satisfy the legal requirement. Consent can be achieved with an electronic beep from the recording device played every 15 seconds, which means that the advisement need not be from a human or be in human speech as long as the recording party is party to the conversation. Most people make recordings of serious conversations because they think they might need the recording in court someday. My general understanding is that having all-party consent on the recording makes for stronger evidence, whether the jurisdiction is a one-party state or two-party state, as single-party consent is more likely to be dismissed as hearsay.

 

[Bill Mattocks]

I'd like to point out that we're talking about two different issues here.

"Eavesdropping" once meant literally standing at the eaves and listening to the private conversations of another; like a Peeping Tom, but listening instead of looking. That's what it means. The crime of eavesdropping was expanded as technology allowed for other types of recorded intrusion into the privacy of another. Whether we are talking about one-party, two-party and notification or consent, I don't have any issue with that.

However, when a person is in PUBLIC, they cannot be 'eavesdropped' upon.

Let me explain. If I am at home, and I say to my wife that my boss is a fink, but he's standing outside my open window recording my conversation, which he uses to fire me, he is breaking the law (and he really is a fink) because I have a legal expectation of privacy in my own home. I am entitled to privacy, and without a court order, no one can record my conversation without breaking the law.

On the other hand, if I am standing outside my place of employment, complaining about my finky boss to a coworker and the boss happens to walk by and hear me, well, I have NO LEGAL EXPECTATION of privacy, so I'm out of luck.

I am allowed to look at you if you in public, right? You can't order me to avert my eyes if you're in public. However, if I peep through your windows, the police come and take me away, and rightfully so. It's the same with photography, and it (should) be the same thing with audio recording. No matter the state, it's a basic concept that if you are in public, you have no legal right to privacy. If I can see you, I can photograph you or video you. If I can hear you, I can record you. How could it be otherwise? Imagine if you had the legal right to demand that people not look at you when you walk by, or that they immediately forget anything they hear you say, because you demand privacy when you're in public.

Eavesdropping is all about people's privacy being invaded and the legality of recording conversations where there *is* a legal expectation of privacy. This situation is not that; it's about recording a conversation where there is *no* legal expectation of privacy.

That's why I think this case is pure BS.

 

[Carol]

I'd like to point out that we're talking about two different issues here.

"Eavesdropping" once meant literally standing at the eaves and listening to the private conversations of another; like a Peeping Tom, but listening instead of looking. That's what it means. The crime of eavesdropping was expanded as technology allowed for other types of recorded intrusion into the privacy of another. Whether we are talking about one-party, two-party and notification or consent, I don't have any issue with that.

However, when a person is in PUBLIC, they cannot be 'eavesdropped' upon.

Let me explain. If I am at home, and I say to my wife that my boss is a fink, but he's standing outside my open window recording my conversation, which he uses to fire me, he is breaking the law (and he really is a fink) because I have a legal expectation of privacy in my own home. I am entitled to privacy, and without a court order, no one can record my conversation without breaking the law.

On the other hand, if I am standing outside my place of employment, complaining about my finky boss to a coworker and the boss happens to walk by and hear me, well, I have NO LEGAL EXPECTATION of privacy, so I'm out of luck.

I am allowed to look at you if you in public, right? You can't order me to avert my eyes if you're in public. However, if I peep through your windows, the police come and take me away, and rightfully so. It's the same with photography, and it (should) be the same thing with audio recording. No matter the state, it's a basic concept that if you are in public, you have no legal right to privacy. If I can see you, I can photograph you or video you. If I can hear you, I can record you. How could it be otherwise? Imagine if you had the legal right to demand that people not look at you when you walk by, or that they immediately forget anything they hear you say, because you demand privacy when you're in public.

Eavesdropping is all about people's privacy being invaded and the legality of recording conversations where there *is* a legal expectation of privacy. This situation is not that; it's about recording a conversation where there is *no* legal expectation of privacy.

That's why I think this case is pure BS.

Eavesdropping is another word like consent. Its often misunderstood. These aren't called eavesdropping statutes, although many people call it that. The formal name is wiretapping statutes and the legal definition of such includes the recording of most conversations. The contrapositive is also true; if no recording is taking place, there is no wiretapping.

The delineation is made between video and This is why you can have security cameras, web cameras, CCTVs, etc. recording your every move......as long as there is no audio track.

 

[Bill Mattocks]

Eavesdropping is another word like consent. Its often misunderstood. These aren't called eavesdropping statutes, although many people call it that. The formal name is wiretapping statutes and the legal definition of such includes the recording of most conversations. The contrapositive is also true; if no recording is taking place, there is no wiretapping.

Respectfully, I disagree.

http://en.wikipedia.org/wiki/Eavesdropping

I also disagree that 'consent' is misunderstood. Some states require consent to recording. Some require only notification. These words are different, they mean different things. Consent, however, means consent. It's not confusing at all. I would agree that 'implied consent' is a confusing term. That's when a person is informed that the phone call is being recorded, and if they stay on the line, they are presumed to have given their consent.

The delineation is made between video and This is why you can have security cameras, web cameras, CCTVs, etc. recording your every move......as long as there is no audio track.

No, that is not why there is no audio track on most security cameras. There is no audio track on most security setups because it is of no particular use. Security cameras are available with audio recording capability, and they are used whenever security considerations find audio recording to be of use to security professionals.

The relationship between 'seeing' and 'photography' is the same as that between 'listening' and 'recording'. That is, if you have the legal right to 'see' something in public, you have the right to photograph it. If you have the right to 'hear' something in public, you have the right to 'record' it. That is, generally speaking. There are exceptions; but it is rare for the government to restrict the ability to photograph/video or make audio recordings in public.

The police have no more expectation of privacy when they are in public than average citizens. Uniformed police officers are public officials; they are employed by and perform their duties on behalf of the public. Their actions are subject to review with respect to how they enforce our laws.

Have you ever heard of a law that if you see a police officer in public performing his or her duties, you must turn your head and not look at them? No. What they do is not secret. If you are allowed to see them with your eyes, you are allowed to take a photo or video of them. Have you ever heard of a law that you must shove your fingers in your ears and not hear what a police officer says when they are in public? No. What they say is not secret. If you can hear them, you can record them.

What Illinois is doing is applying a wiretapping law intended to protect people from being recorded without their consent over a device where they DO have an expectation of privacy (the phone) and applying it to an area where the police do NOT have a legal expectation of privacy (performing their duties in public). Furthermore, I feel that this is being done capriciously, since it is completely common for news reporters to record video and audio in public, including police doing their jobs, without first obtaining permission. They are not arrested or prosecuted. What this is, is harassment. I hope that the law is overturned; it's an infringement of our civil rights, IMHO.

 

[MA-Caver]

I'd like to point out that we're talking about two different issues here.

"Eavesdropping" once meant literally standing at the eaves and listening to the private conversations of another; like a Peeping Tom, but listening instead of looking. That's what it means. The crime of eavesdropping was expanded as technology allowed for other types of recorded intrusion into the privacy of another. Whether we are talking about one-party, two-party and notification or consent, I don't have any issue with that.

However, when a person is in PUBLIC, they cannot be 'eavesdropped' upon.

Let me explain. If I am at home, and I say to my wife that my boss is a fink, but he's standing outside my open window recording my conversation, which he uses to fire me, he is breaking the law (and he really is a fink) because I have a legal expectation of privacy in my own home. I am entitled to privacy, and without a court order, no one can record my conversation without breaking the law.

On the other hand, if I am standing outside my place of employment, complaining about my finky boss to a coworker and the boss happens to walk by and hear me, well, I have NO LEGAL EXPECTATION of privacy, so I'm out of luck.

I am allowed to look at you if you in public, right? You can't order me to avert my eyes if you're in public. However, if I peep through your windows, the police come and take me away, and rightfully so. It's the same with photography, and it (should) be the same thing with audio recording. No matter the state, it's a basic concept that if you are in public, you have no legal right to privacy. If I can see you, I can photograph you or video you. If I can hear you, I can record you. How could it be otherwise? Imagine if you had the legal right to demand that people not look at you when you walk by, or that they immediately forget anything they hear you say, because you demand privacy when you're in public.

Eavesdropping is all about people's privacy being invaded and the legality of recording conversations where there *is* a legal expectation of privacy. This situation is not that; it's about recording a conversation where there is *no* legal expectation of privacy.

That's why I think this case is pure BS.

Agreed yet people can still eavesdrop without your knowledge or consent while in public. Example that I have is that a number of years ago I was with one of my best friends in some burger restaurant and we were talking/debating some religious things. During the conversation some guy in the booth behind me turned around and said to me without preamble or introduction "he's right you know?", referring to a point my friend was trying to make to me. At which I turned around and asked the guy if he was invited in the conversation or not. He smiled and said "no, but your friend is right." I likewise politely as I could told the guy to butt out. Now as far as I know legally the guy was in the right, ethically he wasn't.
Same would go for your boss I would think (* :wink2: nudges Bill* and are you sure that he or a co-worker isn't a lurker on this site?? :lol2: ). Although he was in ear-shot of your calling him a rat-fink he could not "ethically" use that against you. He could file it away in his personal memory and thus hold a grudge against you waiting for the next time you screwed up and thus have biased cause to fire you for what you did to screw up on your job, but he cannot use your "rat-fink" comment against you. Had you said it to his face or in his (invited) presence then he could defend himself personally but I still think legally he could not fire you. If so then it's B.S. to the max which would make this into an entirely different thread altogether.
As far as "look at me in public" well no I guess I couldn't order you but I could ASK you not to do so. Another example... My father (who is deaf) and I were discussing some legal issues (in sign-language) and another deaf person was sitting nearby and observing our conversation. I had to pause in mid-sentence when I noted he was "listening in" on our conversation. I turned and told that person that "this is a private conversation please." The observer politely turned his attention elsewhere.
I hear people talking together all the time and sometimes choose to ignore it or just listen in and then ask to participate before throwing my two bits in. Again, legally I got a right to do what I want it's ethically that I make the appropriate choices to do so or ignore.
Recording a conversation I think should be with the consent of all parties involved as long as they know and can see the device. Hidden mics, bugs, cameras... and 1/2 the room ignorant of their presence and the other 1/2 not... that's wrong.
We live in a society now where there's a camera almost literally everywhere we go. Many do not have microphones but some do. Our transactions and light banter with a cashier behind the counter at a gas-station/convenience store about whatever may be audibly recorded. We don't know that but we are aware (or should be) that we are being "filmed/recorded" without our prior consent. But is it consent that we already take it for granted that there are cameras pointed at us. A lot of places do have a sign posted on their windows or on the glass of their entry doors letting us know of the device's presence. By walking into that place we just consented to being recorded... didn't we?

The guy held his camera out the window, the cop saw it and took an accurate guess as to what it was and then took what he felt was legal recourse as per his job. It still goes back to the dash cam mounted in his cruiser. For the officers and the public's safety... but what happens if we ask them to turn it off?
A whole new can of worms right there.

 

[Buka]

I don't personally know the officer or the driver, so this is just a guess, but, to me, what we have there is a case of a jerk pulling over a jerk. As for that law, I hope it gets trounced.

 

[Carol]

Respectfully, I disagree.

http://en.wikipedia.org/wiki/Eavesdropping

I also disagree that 'consent' is misunderstood. Some states require consent to recording. Some require only notification. These words are different, they mean different things. Consent, however, means consent. It's not confusing at all. I would agree that 'implied consent' is a confusing term. That's when a person is informed that the phone call is being recorded, and if they stay on the line, they are presumed to have given their consent.



No, that is not why there is no audio track on most security cameras. There is no audio track on most security setups because it is of no particular use. Security cameras are available with audio recording capability, and they are used whenever security considerations find audio recording to be of use to security professionals.

The relationship between 'seeing' and 'photography' is the same as that between 'listening' and 'recording'. That is, if you have the legal right to 'see' something in public, you have the right to photograph it. If you have the right to 'hear' something in public, you have the right to 'record' it. That is, generally speaking. There are exceptions; but it is rare for the government to restrict the ability to photograph/video or make audio recordings in public.

The police have no more expectation of privacy when they are in public than average citizens. Uniformed police officers are public officials; they are employed by and perform their duties on behalf of the public. Their actions are subject to review with respect to how they enforce our laws.

Have you ever heard of a law that if you see a police officer in public performing his or her duties, you must turn your head and not look at them? No. What they do is not secret. If you are allowed to see them with your eyes, you are allowed to take a photo or video of them. Have you ever heard of a law that you must shove your fingers in your ears and not hear what a police officer says when they are in public? No. What they say is not secret. If you can hear them, you can record them.

What Illinois is doing is applying a wiretapping law intended to protect people from being recorded without their consent over a device where they DO have an expectation of privacy (the phone) and applying it to an area where the police do NOT have a legal expectation of privacy (performing their duties in public). Furthermore, I feel that this is being done capriciously, since it is completely common for news reporters to record video and audio in public, including police doing their jobs, without first obtaining permission. They are not arrested or prosecuted. What this is, is harassment. I hope that the law is overturned; it's an infringement of our civil rights, IMHO.

News reporters are still held to the same laws, I remember from my time as a chief engineer, if a reporter was going out with a tape recorder, they must tell the person that they are going to record the conversation. Admittedly I don't know what would fall under implied consent as any time the station was going to be recording someone (the mayor or whomever), that was planned ahead. I do share your hope that the law is overturned, or at least modified.

The civil disobedience groups here prefix an encounter by saying something like "I'm recording this". I haven't heard anyone getting in to hot water for that, but I'm also left thinking that IL and MA have been a bit more vigorous at prosecuting the recordings.