Chris Drew was looking for trouble on Dec. 2, 2009, when he set out on Chicago’s State Street to sell art without a permit. He was not looking for the amount of trouble he found.
Drew was carrying an Olympus digital voice
recorder. Police had no idea that he was recording the arrest. When you
record police, prosecutors or judges in Illinois without their consent,
it is a class one felony, punishable by 15 years in prison.
“We weren’t listening in on anything
private. We were all public, in public," Drew said. "So by the very
definition of eavesdropping, I could not imagine there was an
eavesdropping law that made it illegal to listen in on a public
conversation.”
He got a break, at least for the moment.
Cook County Circuit Court Judge Stanley Sacks ruled that the
eavesdropping law is unconstitutional because it is overly broad.
“The Illinois eavesdropping statute
potentially punishes as a felony a wide array of innocent conduct. For
example, a juror using an audio recorder to record directions to the
courthouse for jury duty given by a police officer would be in violation
of the statute,” Sacks wrote in his decision.
However, one circuit court judge cannot rule the law off the books. It now heads for the Illinois State Supreme court. Months could go by before justices could produce a ruling.
So at least in Cook County, the state’s
attorney will continue to prosecute the eavesdropping law: “As state’s
attorney, I’m going to enforce the laws that are on the books. That is
the law that is on the books,” Anita Alvarez said.
Bearing down on Chicago in late May is the upcoming NATO
summit. It is expected to bring with it throngs of protestors who take
video recordings almost as often as they chant slogans. Police could be
overwhelmed and transport vehicles could be overstuffed with
iPhone-wielding future felons.
“If they're concerned with everybody pulling
out their phones and recording, doesn't that take away from the real
purpose of the officers being there? Which is to maintain the security
of the public, protestors and the people being protested,” Drew’s
attorney, Joshua Kutnick, said.
Democratic state Rep. Elaine Nekritz is
pushing a bill to repeal the Illinois eavesdropping statutes ahead of
the NATO summit. Her repeal passed committee but not unanimously. The
Vote was 9 to 2, and even some of the lawmakers who supported the repeal
voiced concern.
“I don’t think this will sail through,” Nekritz said. “It will face some pretty significant hurdles."
The hurdles will come from prosecutors and
police. The Illinois Fraternal Order of Police issued a statement
saying: “By allowing the audio/video recording of witnesses and victims
without their knowledge or consent, there will be a chilling effect on
witnesses coming forward…There will be victims who are re-victimized.
And, there will be tragic split seconds, where a pointed cellphone will
be mistaken for a pointed gun.”
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