The growing momentum against the Illinois Eavesdropping Act
Will the state Supreme Court find the strict law unconstitutional?
For two years, Chris Drew lived with the threat of a 15-year prison sentence. The Uptown-based artist was charged with a felony after he recorded his December 2009 arrest for peddling art without a license in a prohibited Loop area. Unknowingly, he was in violation of the unusually strict Illinois Eavesdropping Act, which forbids audio-taping interactions without the consent of all parties—even when one of those people is an on-duty police officer in public. On March 2, a Cook County judge ruled in Drew’s favor, declaring the statute unconstitutional.
Drew didn’t have much time to bask in victory. Five days after the decision, the 62-year-old hailed a cab to Evanston and checked into Saint Francis Hospital after complaining of an atrial flutter. He figured it was a complication related to the lung cancer he’s been battling since he was diagnosed a year ago. It turned out there was fluid gathering around Drew’s heart; he underwent surgery so doctors could drain it.
On the phone from his hospital bed last week, Drew turned his thoughts from his failing health to his legal triumph. He said he was beginning to grasp the significance of the ruling as a major blow to the eavesdropping statute’s legitimacy. Cook County State’s Attorney Anita Alvarez is appealing the judgment to the Illinois Supreme Court. But Drew welcomes the challenge as an opportunity for the high court to strike down the eavesdropping act. (The amendment was passed in 1994 in response to a 1986 case, People v. Beardsley, in which the state Supreme Court decided police could be recorded during a traffic stop.) “What [the law is] protecting is secrecy disguised as privacy,” Drew said. “It’s so damn obvious to anyone with a cell phone.”
The local ruling is just the latest indication of the snowballing momentum against the Illinois Eavesdropping Act. In mid-August, the ACLU filed a federal lawsuit in Chicago challenging the constitutionality of the law. (The case is still pending in federal appellate court.) A few days later, a Chicago jury acquitted Tiawanda Moore of eavesdropping charges for using her BlackBerry to record Police Internal Affairs investigators.
In January, even Police Supt. Garry McCarthy came out in support of citizens recording police work, saying the documents can be helpful for both parties. The Fraternal Order of Police, meanwhile, maintains the law prevents accusations against officers based on out-of-context pieces of audio.
By early February, Illinois House Bill 3944, which would allow citizens to make audio recordings of police, advanced out of committee. “But nothing is a slam dunk in Springfield,” ACLU attorney Adam Schwartz says. “Some members of the law enforcement community don’t like the idea of extra scrutiny, and there are legislators who are responsive to those lobbyists.”
Two days before the Drew ruling was handed down, State’s Attorney Ron Dozier of downstate McLean County dismissed eavesdropping charges against Cartenous Turner, 28, a resident of Normal who was charged after recording cops with his cell phone during a traffic stop.
“The tide is obviously turning,” attorney William Sunderman says. “It’s a significant event when a state prosecutor says a law is unconstitutional.” Sunderman is defending Michael Allison, a 42-year-old downstater who was indicted in 2009 on five counts of eavesdropping for digitally recording court proceedings and conversations with police. Allison faced a possible 75-year sentence. In September, a Crawford County judge threw out the case. As in Drew’s circumstance, the Allison ruling is being appealed to the Illinois Supreme Court.
“The advancement of technology is making it impossible for anyone to defend the statute as it is,” attorney Torreya Hamilton says. Her client, Louis Frobe, was slapped with a felony charge for rolling his Flip cam when police stopped him for speeding in north suburban Lindenhurst. The charge was eventually dropped, but in response Frobe filed an as-yet-unresolved federal suit questioning the law’s constitutionality.
“I imagine police officers in the lake up to their knees trying to stop the tide,” Hamilton says of the growing consensus against the act. “It’s an impossibility.”