Illinois Eavesdropping Law Doesn’t Make Sense to Police Superintendent

The rise of technology has enabled everyone to record events in public as they unfold. However, provisions of the current Illinois eavesdropping law are problematic, even for the police.

Illinois’ eavesdropping law is one of the few in the nation that criminalizes audio recording of on the job police. The Illinois Eavesdropping Act has been on the books since 1961, with changes over time. The law classifies audio-recording a civilian without consent as a Class 4 felony, punishable by up to three years in prison for a first-time offense. A second offense is a Class 3 felony with a possible prison term of five years.

Further complicating matters, is that the law allows law-enforcement officials to legally record civilians in private or public, but citizens who audio-record a law-enforcement officer, state’s attorney, assistant state’s attorney, attorney general, assistant attorney general or judge in the performance of his or her duties are committing a Class 1 felony, punishable by up to 15 years in prison.

Chicago Police Superintendent Garry F. McCarthy, Lucy Dalglish, Executive Director at the Reporter’s Committee for Freedom of the Press, and Harvey Grossman, Legal Director at the American Civil Liberties Union (ACLU) Illinois discussed the problems this law presents in the age of mobile phones, social media, and the Arab Spring, with moderator Don Wycliff, professor at the Loyola School of Communication, on a panel entitled “Shattered Lens: A Citizen’s Right to Film,” on January 25th at Loyola University, sponsored by the Chicago Headline Club and The McCormick Foundation.

During the Occupy Chicago protests, Chicago Police Superintendent Gary F. McCarthy said he requested to see video of the arrests of protesters. When he reviewed the video the next day, there was no audio with the video. It had been scrubbed from the recordings. McCarthy, who had been accustomed to being able to record arrests in New York City and New Jersey, said he’d been unaware of the Illinois Eavesdropping Act.

Illinois is one of a dozen states that require the consent of all those involved in a recorded conversation. The Illinois law is one of the strictest in the nation. In 1994, the law was expanded to include the need for two-party consent in public. Several years later, legislation made it a class one felony, subject up to 15 years for recording of a police officer or judge.

McCarthy said he endorses the use of video and audio because it provides transparency and calls the restriction “problematic” and requires the department to develop policies of what can be used to record arrests.

“Anything that would obstruct transparency is not a good idea,” said McCarthy from the panel on Wednesday. “There’s no argument when you can show a videotape and you can look at what happened.”

However, McCarthy said while the law might or might not makes sense, it has to be enforced. Also, the issue of counter-surveillance activities must also be taken under consideration when disputing the statue, he said.

That potential terrorists might use recording devices is one reason cited to support the ban, is “nonsense” to some legal experts.

In the last year, Lucy Dalglish, executive director at the Reporters Committee for Freedom of the Press, said her office had seen an increase in nationwide reports of journalists being arrested for reporting. Many arrests are due to covering protests but lately it has involved the police targeting reporters covering local events.

Dalglish said reported incidents have risen where “citizen reporters” and people on the street have been recording, yet the police targeted and arrested reporters. These incidents have occurred around the United States and abroad. She said the problem with the Act is that it doesn’t distinguish those engaging in news-gathering behavior vs anyone else in a public venue.

“The notion that a statue in a very vague way tries to determine what’s news and what’s not, I think is so overly broad and vague,” she said. “I don’t see how this law can stand.”

With thousands of journalists arriving to report on the NATO and G8 conferences in May, if the law is in effect, Dalglish sees it as problematic for the police and the city. Citizens using their mobile phones, as well as reporters covering the conferences and related events would be subject to arrest as they try to capture and share the events.

Foreign journalists who have come to expect leadership from the US, said Dalglish, and to set a standard that they probably can’t work up to will ” undoubtedly shock them.”

“Quite honestly I think that it would be an embarrassment,” she said.

The ACLU is seeking to have the law stuck down. As they have included media technology in their legal observations, they have been handcuffed the restrictions of the law. Harry Grossman, legal director at ACLU Illinois said the law is hindering the ACLU’s ability to file lawsuits concerning police activities.

“As a consequence, there is specialized protection for the police officers in the state of Illinois,”said Grossman. “I think the place where we run into trouble [with the law] is where people are prohibited absolutely from doing something as oppose to having someone inquire about what they’re doing.”

Since the ACLU has been challenging the law, they have seen an indication that Cook County State’s Attorney Anita Alvarez will prosecute under the statue. Currently, the ACLU waiting on a decision from the 7th U.S. Court of Appeals regarding the constitutionality of the law. Rep. Elaine Nekritz (D-57th) has introduced HB 3944 allowing the filming of police during their duties in a public space and hopes to get it out of committee and into law as the NATO and G8 summits approach.

However, Grossman said it would be better if the courts made their own ruling.

“I think it’s proper for the courts to do repair and redress here, too,” he said.