Ill. judge declares eavesdropping law unconstitutional

A Cook County judge declared the Illinois eavesdropping statute unconstitutional last week in the case of a street artist who recorded exchanges with police during his arrest.

Judge Stanley Sacks is the second judge to call the statute unconstitutional within the last year. Chicago Police Superintendent Garry McCarthy also publicly supported audio recording at a panel discussion in January.

“The fault of the statute is that it does not require an accompanying culpable mental state, or criminal purpose for a person to be convicted of a felony,” Judge Sacks wrote in the decision. “The Illinois Eavesdropping Statute potentially punished as a felony a wide array of wholly innocent conduct.”

What started as a misdemeanor offense for selling $1 art pieces on the streets of Chicago quickly turned more serious for 61-year-old Christopher Drew after officers discovered a recording device in Drew’s pocket capturing conversations during his arrest. He was initially arrested for selling his art on the street without a permit in late 2009.

Drew was charged with violating the state's eavesdropping statute, which criminalizes the recording of police without their consent. Violation of the law carries a potential sentence of up to 15 years in prison for anyone who “knowingly and intentionally uses an eavesdropping device for the purpose of hearing or recording all or any part of any conversation." The Illinois law does not differentiate between public and private conversations. Any audio recording – without consent, even if made in a public space – violates the law.

In the decision, Sacks cited examples of a violation to the state's law including, a routine traffic stop where a person records an officer's instructions on how to pay a speeding ticket or parents filming a child's soccer game and unintentionally capturing another conversation.

“This law is defined by the Legislature and in bringing charges in this case the State’s Attorney’s Office was doing its job in enforcing this law as it currently exists in Illinois,” Alvarez said in a press release. Alvarez said she would appeal the case. At least two other cases questioning the constitutionality of the law are pending in state and federal courts, and revisions are being considered in the state legislature.

In the case, Drew’s attorney Joshua Kutnick argued that the law was initially enacted to protect personal privacy and that the recording of a police officer engaged in their public duties or a judge in court does not violate one’s right to privacy.

In September, a trial judge weighed in on the constitutionality of the law in Illinois v. Alison, stating in his opinion that “a statute intended to prevent unwarranted intrusions into a citizen’s privacy cannot be used as a shield for public officials who cannot assert a comparable right of privacy in their public duties.” The Illinois Supreme Court will hear the case later this year.

Related Reporters Committee resources:

· News: Prosecutor drops case under Illinois eavesdropping law

· News: Strict eavesdropping law ruled unconstitutional in Illinois case

· Brief: Amicus brief in ACLU v. Alvarez

· Brief: Testimony in support of Illinois bill on audio recording of police officers

· Can We Tape?: Illinois