Illinois has a quirky “eavesdropping” statute, 720 ILCS 5/14-1, which makes it criminal to make an audio recording without all recorded parties’ consent. Most states require the consent of only one participant. The statute has been used by Chicago police in several instances to prosecute citizens who’ve used cell phones to record police misconduct. There have been several recent developments that call into question this outdated statute.
In one recent case, a Cook County jury found 20-year-old Tiawanda Moore not guilty of violating the statute. She was charged with two felonies for secretly recording her interview with two police officers from the Chicago Police Department’s internal affairs division. She caught the officers on tape trying to talk her into dropping her sexual harassment claim against an officer who responded to a domestic disturbance at her house. The officer allegedly groped Moore and gave her his phone number. When the internal affairs officers tried to pressure her into dropping the complaint, Moore took out her Blackberry and started recording. Moore faced a possible jail term of 15 years. On August 24, 2011, the jury returned a “not guilty” verdict in less than an hour.
Meanwhile, the American Civil Liberties Union is challenging the eavesdropping statute in federal court in the case ACLU v. Alvarez, 11-1286. The lawsuit argues that the statute is unconstitutional because it makes it a felony for ACLU employees to record police activities at demonstrations, protests and other public events in which citizens are exercising their First Amendment rights. The Seventh Circuit heard oral argument in the case on September 13. Judges Posner, Sykes and Hamilton were on the panel that heard the case. Judge Posner was vocally hostile to the ACLU challenge, peppering attorney Richard O’Brien (a Sidley Austin partner who appeared on behalf of the ACLU) with hypothetical scenarios in which the eavesdropping statute would protect innocent citizens from dissemination of private conversations. O’Brien argued that it is unconstitutional for a statute to criminalize the activity of a citizen who records a public employee performing public duties in a public place. He also points out that citizens are not prohibited from photographing or video-recording police officers; the outdated eavesdropping law reaches audio recordings only. Judges Sykes and Hamilton seemed more sympathetic to the ACLU’s challenge.
Audio of the oral argument in the case (recorded with the knowledge and implied consent of all involved!) is available here.
The First U.S. Circuit Court of Appeals (which encompasses Boston) ruled August 26 in Glick v. City of Boston, 10-1764, that Boston police violated the constitutional rights of Simon Glick when they arrested him for using his cell phone to film police officers making an arrest on the Boston Common. Glik was charged with violation of Massachusetts’s wiretap statute. The Court wrote:
We conclude, based on the facts alleged, that Glik was exercising clearly-established First Amendment rights in filming the officers in a public space, and that his clearly-established Fourth Amendment rights were violated by his arrest without probable cause.
The full text of the decision is available here. Hopefully, Illinois courts move in the same logical direction.
