Applications of Illinois Eavesdropping Act still being debated — part 1

By Susan Johnson
Copy Editor

While the constitutionality of various laws may be decided in court, one that affects Illinois citizens is in the midst of controversy. This issue was highlighted in a Chicago Tribune article of Jan. 2: “Eavesdropping vs. public speech.”

The Rock River Times addressed this topic in a Nov. 2, 2011, article, “Legal questions arise on filming of police in public places,” in which we obtained comments from local officials.

Illinois is unique in having some of the strictest regulations on what may be considered eavesdropping, even in public places where no secrecy is intended. To get an update, we interviewed some of the people mentioned in the Tribune article. We have also been in contact with Peter M. Heimlich, an independent researcher with his own blog, who has been following another case that involves a whistleblower.

The Chris Drew case

Joshua Kutnick is an attorney who represents Chris Drew, who, as the Tribune reported, “is accused of making an illegal audio recording of Chicago police during a 2009 arrest for selling art on a downtown street without a permit.”

Kutnick spoke to us by phone Jan. 5:

TRRT: What is your understanding of the Illinois eavesdropping law as it applies to private citizens videotaping or audiotaping in public?

Kutnick: “Videotaping is a different story than audiotaping. A videotape is capturing something that is open and public. You don’t have any right to privacy in walking down the street or looking in the window at Macy’s. But what you say in private conversations —those are protected by the Illinois constitution, and rightfully so. You wouldn’t be able to record this conversation without my consent. But if I did consent, it would be all right.

“Where the water gets muddy in regard to police officers — specifically, those performing their public duties, is undercover police officers who are investigating something and … they could obtain court orders to eavesdrop. They should be able to do this, but in Illinois, we have what is ‘judicial oversight.’ That allows police officers to record — basically a search warrant. It shouldn’t be carte blanche. There are reasons for the Illinois Eavesdropping Act, like a private phone conversation.

“In a situation like Chris Drew, where he is using something to record police conduct, and he is being charged with the recording of that public police action — we feel that he has a right to record the police doing their public duties, and that is exactly what happened here. One of the examples we are citing in our motion to dismiss — if you are driving from home to jury duty and you get lost, and you see a police officer sitting on the side of the road. You ask him for directions, and you turn on your recorder on your cell phone and record what he tells you. Under the Illinois Eavesdropping Act, you’ve just committed a Class 1 felony, because you recorded the conversation with the police officer without his consent. If he consents, that is a different story. That’s why we think the law, as written, is unconstitutional because it criminalizes potentially innocent conduct.

TRRT: Are you aware of any other cases past or present that might have any bearing on the ruling in the Drew case?

Kutnick: “The Crawford County case — People vs. Michael Allison. You can read about the facts of this case. [The case concerned an ordinance violation citation that the City of Robinson issued regarding an alleged abandoned car on Allison’s property. In the circuit court order, it was alleged that Allison used a digital recorder to secretly record conversations with officials including police officers, employees of the Crawford County clerk, the Robinson city attorney’s office, and a judge presiding over the case. The circuit court rejected Allison’s argument but upheld his contentions that the statute violates substantive due process and the First Amendment. Citing the Supreme Court’s discussion of the test for constitutionality in People vs. Madrigal, 241 III 2d 463, 948 NE 2d 591 (2011), the court ruled that the Illinois Eavesdropping Statute was unconstitutional.]

“The judge ruled that it was illegal for him to be prosecuted under the Eavesdropping Act. All the charges against him have been at least temporarily thrown out while the state appeals that to the Illinois Supreme Court. That is what’s going on right now. It was a violation of his constitutional rights, and the state is appealing that ruling directly to the Supreme Court.

“There was also the case called People vs. Tiawanda Moore. She was found not guilty by a jury.[Moore secretly recorded a conversation with two Chicago Police investigators while filing a sexual harassment complaint. It began with police responding to a domestic disturbance at the home of Moore and her boyfriend. They were questioned separately, and Moore claimed that the officer groped her breast and gave her his home phone number. When Moore and her boyfriend attempted to file a complaint, they allegedly were discouraged from doing so. That’s when Moore began to record the conversation on her Blackberry phone. When the case was taken to court, prosecutors alleged that there was a discrepancy in Moore’s statements to the police, and they said there was credible evidence for the prosecution. But the jury found that Moore’s case met the requirements of an exception to the Illinois Eavesdropping Law, and she was acquitted.]

To be continued …

From the Jan. 25-31, 2012, issue