Illinois’ strict eavesdropping law should change

Proposed bill would allow audio recordings of police officers in public

Illinois has one of the strictest eavesdropping laws in the nation, but some state legislators are proposing a bill that could allow the recording of a police officer on the job in a public setting without the officer’s consent.

If the bill passes, it shouldn’t come as a surprise to anyone paying attention to headlines during the last year or so.

In August, a Cook County jury acquitted Tiawanda Moore, who had recorded two Chicago police officers on her smart phone when she believed they were bullying her into not filling a sexual harassment case against a patrol officer; and a Chicago street artist faces up to 15 years in prison if charged with recording audio of his 2009 arrest.

In September, a Crawford County judge dismissed eavesdropping charges against a man and ruled the law unconstitutional. The judge held that the law violated the man’s First Amendment rights to gather information about the case.

The ruling led to Illinois Attorney General Lisa Madigan asking the state Supreme Court to address whether the law is unconstitutional.

If citizens already assumed they had this right, doesn’t that justify it becoming one?

It would be a major game changer for all parties involved, including police officers, citizens and journalists.

Officers could argue that the bill violates their equal protection because they are being singled out for discriminatory treatment, but William Freivogel, director of the School of Journalism, said he doubts the argument is strong enough to win.

“Legislatures can sometimes restrict the rights of public employees in ways they could not restrict private employees.  For example, the Hatch Act prohibits federal employees from participating in partisan political activity, even though Congress clearly could not put such a restriction on a private person,” he said in an email. “Similarly, the legislature can potentially permit eavesdropping on police officers in public places without their consent even though the legislature does not permit eavesdropping on private people without their consent.”

Another argument against the bill is that audio-recordings of police officers during an arrest could be easily misinterpreted as abuse.

But if police officers perform in accordance to the law and are not using excessive force or other unlawful tactics to make an arrest, the argument is irrelevant.

I fully support the passing of this bill, but have one small concern: The wording doesn’t protect the citizens involved in the arrest.

Let’s say a police officer makes an arrest in a public place. A bystander pulls out his smart phone and begins recording. According to the proposed bill, the bystander has every right to record audio of the police officer since they are in a public setting. However, the recording would also capture audio of the person under arrest.

Does the person being arrested no longer have protection under Illinois’ two-party consent law?  I’m curious to see how this scenario would play out in court.

A photographer can legally take photos of an arrest from a sidewalk, but capturing audio of the account is a far different story.

And speaking of photographers, the National Press Photographers Association fully supports the bill. The NPPA submitted comments to the Illinois General Assembly stating that Illinois’ current eavesdropping law has created a chilling effect upon free speech and free press and that the bill should immediately be enacted.

The law was first enacted in 1961 — more than half a century ago. So, in the words of Bruce Springsteen: It’s been a long time comin’.

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