Privacy--An Outdated Concept?

Laptop_Cheats-iStock_000017161349XSmall1One thing I am constantly struck by is how the world is changing more rapidly than ever before. Just think back to even a few years ago and now fast forward to today and think of all the apps and things you can do that you couldn't do before, to say nothing of comparing today's landscape to 10, 20, or 30 years ago. I still think back to when I was in law school and I knew one (yes 1) of my class mates had a computer. We used to hire typists to type our papers. Yes, on typewriters, something I actually took a class on in high school, quickly increasing my speed from abysmal to lousy.

Well, there seems to be a constantly shifting landscape as far as what is private, what is out there for all to know, and who, if anyone, controls this decision. One only read a bit about the workings of Facebook and Google to wonder whether there is any data they don't collect! But before raving in paranoid fashion about the advent of George Orwell's 1984 becoming today's reality, I thought I'd address a case pending right now in Chicago that has much to do with what the public has a right to do, and which will address where exactly the line might be.

The Chicago Tribune's story on the artist who recorded his arrest by police demonstrates some of the arguments on both sides. In 2009, an artist named Chris Drew was selling art without a permit on a Chicago street when he was arrested by a Chicago Police Officer. Drew made an audio recording of this interaction with the police officer using a recording device in his pocket. This resulted in a charge of eavesdropping on a public official, a charge that can result in up to 15 years in prison. Drew and his attorneys are arguing the law is unconstitutional because the public has a right to record what public officials are doing.

Illinois is one of the few states that requires all parties to a recording to consent to it.

The opposing view is represented by a bill recently introduced by Elaine Nekritz (D-Northbrook) in the Illinois House that would expressly allow recording of police officers who are doing their jobs in public. This also comes on the heels of an August acquittal by a Cook County jury of a woman charged similarly with recording two internal affairs officers who she believed were trying to dissuade her from pressing a sexual harassment charge against a police officer. It has also been argued by some that there could be occasions where large mobs of people could use video or audio recording of police actions as a method of intimidating or baiting officers. A U.S. appeals court is considering a separate challenge and a Crawford (Illinois) County judge in the fall dismissed similar charges and found the law unconstitutional in a similar scenario.

The decision on the Drew case will be made by Judge Stanley Sacks is expected shortly, although it is bound to be challenged in higher courts.

This brings us back to the whole privacy thing. In theory, police who are doing their jobs in public (and are being paid by us) should have no expectation of privacy. But is it possible for a mob of say 30 people to start yelling at and baiting an officer who is trying to arrest someone in a hostile environment? If one can record a police officer, what about a school teacher or a judge? Does the public have a limitless right to know and how does all this fit into the new paradigm of a 24/7 news cycle, Twitter, Facebook, and constant sharing of information? And, if all this recording is allowed and deemed constitutional, is there any limit for which this information can be used? Think also of how people change their behavior when they know they are being recorded versus when they don't. With cameras coming to some selected Illinois courtrooms in a pilot program, this will soon be tested.

One issue that is a constant and growing issue is the use of social media by lawyers and their clients. A recent workers' compensation case was denied because of "incriminating" photos posted on Facebook. As Shakespeare said, "all the world's a stage," so it stands to reason that if you are claiming you are so injured you can't go grocery shopping but post photos of yourself tossing a turkey around at Jewel, you could be harming your credibility and your case. What if you claim you've never talked to a witness about how the accident occurred but they turn out to have lots of Facebook or text messages where you discuss this very thing? Is it okay for a juror to "friend" a lawyer during a trial? There are a plethora of potential issues here. Let's face it, I just wanted to write "plethora." And that doesn't even open the other can of worms with the Stevenson High School drug dealing ring that school officials apparently cracked by confiscating phones of students and browsing their texts.

Without taking sides, it is certainly more of a headache or slippery slope than the very specific case represented by the artist Chris Drew.

I suppose I am guilty of being one of those darn lawyers who can always see both sides to every issue, and is seen as mealy-mouthed by those straight-talking resolute folks but this particular issue seems to me to need some stricter guidance. Perhaps legislators, judges, and others are stepping up to the plate to define the limits of this.

Either way, I'd love to hear your thoughts on this and I expect they'll span the spectrum.

Categories: General