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Editorial: Bad bill would erode privacy rights

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Sun-Times library

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Updated: July 6, 2012 9:12AM

If all we cared about was catching bad guys, it would be easier if we threw away the Constitution, including that part about a right to privacy.

But, of course, we do care about other stuff, like living in a free society where even cops must play by certain rules. And that means there will always be tensions between the needs of law enforcement and the preservation of civil liberties.

What we’re saying here — let’s get to the point — is that Gov. Quinn has a bill on his desk that he should not sign. It would create an unnecessary expansion of police powers by eroding our privacy rights.

House Bill 4081 would allow police officers working drug cases to secretly record people without first showing probable cause that a crime is going down and getting permission from a judge. The police would need permission, instead, only from their local state’s attorney — who, unlike a judge, is never a neutral referee.

Furthermore, it’s debatable whether the police would be required to give the state’s attorney more than a general assurance that the secret wire is for purposes of a drug investigation. The sort of details now required by a judge so as to prohibit the secret recording of anybody and everybody — when and where and who — might not be necessary.

The bill is supported by a number of law enforcement groups and the Illinois State’s Attorneys Association, but it’s opposed by the Illinois State Bar Association. It has been sold as a way to protect undercover police officers, especially those investigating drive-by drug sales.

But current law already allows officers to wear listening devices without prior approval from a judge for this narrow purpose — so that a cop in danger can utter a “safe word” that says to his fellow officers “come and get me.” Where House Bill 4081 goes off the rails is in allowing the information gathered by such recordings, though approved only by a state’s attorney, to be used as evidence at trial.

Our prisons are overcrowded with drug dealers. Our police are doing the job. We see no persuasive justification for yet another small erosion of our fundamental liberties.

On the contrary, we urge Quinn to consider the words of Supreme Court Justice Robert A. Jackson, who in a 1947 decision explained the importance of neutral judges, not prosecutors with a stake in an investigation, ruling on fundamental Fourth Amendment privacy rights issues:

“The point of the Fourth Amendment which often is not grasped by zealous officers” is that “when the right of privacy must yield to the right of search” it should “be determined by a judicial officer, not by a police officer or government enforcement officer.”

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