Eavesdropping law unconstitutional

By Kaley Fowler

After more than two years of legal battles, Chicago street artist Chris Drew can rest easy knowing he is no longer facing felon status for audio recording his own arrest.

Felony eavesdropping charges against Drew were dropped March 2 when Cook County Judge Stanley J. Sacks declared the Illinois Eavesdropping Act, which prohibits citizens from recording their interactions with on-duty police officers, unconstitutional.

As reported by The Chronicle on Jan. 25, 2010, Drew initially set out on State Street on Dec. 2, 2009, in hopes of getting arrested for selling his artwork without a permit in protest of the city’s peddler’s license law, which requires artists to have their work approved by the city before selling it on the street. Upon his arrest, Drew began recording, prompting police to arrest him in violation of the eavesdropping law, which carries a four- to 15-year prison sentence.

The American Civil Liberties Union of Illinois, an organization seeking to protect constitutional rights, assisted Drew with his case. According to Edwin Yohnka, director of Communications and Public Policy for the ACLU, individuals should be able to record their public interactions with police as a way to “monitor and check police activities.”

“Our lawsuit is really about attempting to ensure that we can record police doing their public duty in a public place,” Yohnka said. “We’re not talking about recording police in their squad cars [or] when they’re questioning someone inside an interrogation room. We’re talking about a [public space] where the police [are] acting.”

According to Drew, it took Sacks several months to prepare his 12-page decision. The verdict stated that the eavesdropping law has the potential to criminalize “wholly innocent conduct,” such as accidentally overhearing a conversation.

While the law was declared unconstitutional in Drew’s case, he said it would ultimately be up to the Illinois Supreme Court to decide if the law is in fact a violation of the Constitution.

“It’s a very important decision, but it’s the only beginning of a continuous fight to change this law,” Drew said. “The debate over what to do about this law is really just beginning to rage.”

Illinois is one of few states that does not embrace one-party consent, which requires only one member of the conversation to give permission to be recorded, but rather requires all members to consent.

However, House Bill 3944, currently under review by the Illinois House of Representatives, aims to eliminate those consent restrictions when it comes to recording on-duty police officers in public.

“The current law is not constitutional and it is our responsibility to fix that,” said House Representative Daniel Biss (D-17th), a co-sponsor of the bill. “The notion that it’s illegal to audio record [or] videotape a police officer in a public place does not make sense.”

A floor debate must take place before the House of Representatives votes on the bill. This will happen after all committee members have reviewed the bill, according to Biss. If it is passed by a majority vote, it will move on to the Senate, where it will undergo a similar process, he said.

While the bill’s proponents are hopeful that it will be well-received, some have expressed concern that the revised eavesdropping law may hinder police officers from doing their job.

House Representative Jil Tracy (R-93rd), who is on the Civil Law Committee reviewing the bill, advised that “you just want to make sure that the public is allowing the police officer to conduct his duties without concern” that citizens trying to record will get in the officer’s way.

Although she expressed concern about possible consequences of repealing the law, Tracy maintained that the eavesdropping statute “needs to be revisited,” as she believes the current punishment is too harsh.

Under the proposed revisions to the eavesdropping law, recording public interactions with police would no longer be a punishable offense.

Representative Dwight Kay (R-112th), another co-sponsor of the bill, said the law in its current state is unnecessarily severe but for a different reason: He believes the law allows the Constitution to work against itself.

“[The ability to record police officers] happens to be a basic fundamental right,” Kay said. “We shouldn’t deny First Amendment rights using the Fourth Amendment to do it.”

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