I've written a couple pieces now about how the Illinois wiretapping law is the toughest in the country, and has been used to charge people who record on-duty police officers with a felony punishable by 4 to 15 years in prison (for each recording). This week, the Illinois ACLU filed a challenge to the law.
The ACLU argues that the act violates the First Amendment and has been used to thwart people who simply want to monitor police activity.
The head of the Chicago police union counters that such recordings could inhibit officers from doing their jobs.
In its lawsuit, the ACLU pointed to six Illinois residents who have faced felony charges after being accused of violating the state's eavesdropping law for recording police making arrests in public venues.
Adrian and Fanon Perteet were passengers in a car at a DeKalb McDonald's drive-through in November when police moved in. Officers suspected that the car's driver was under the influence, according to the brothers.
Fanon Perteet, 23, said he was scared. Past experiences with police had left him suspicious of the officer's motives, he said. So he pulled out his cell phone and turned on the video camera, which also records sound.
"I felt obligated to record so nothing happened," said Perteet, an event planner.
When the officers realized they were being taped, Perteet was arrested and taken to a squad car. Adrian Perteet, 21, a student at Northern Illinois University, then took out his cell phone and started recording his brother's arrest.
Both brothers were charged with violating the eavesdropping act, a felony, their lawyer Bruce Steinberg said. They pleaded guilty in April to attempted eavesdropping, a misdemeanor, to avoid felony convictions, Steinberg said.
The Perteets were ordered to apologize to the officers. They were given back their cell phones, which had been seized by police, but told to delete the recordings…
Mark Donahue, president of the Fraternal Order of Police in Chicago, said he believes the state's eavesdropping law is a good one. Allowing people to make audio recordings of arrests "could potentially inhibit an officer from proactively doing his job," Donahue said.
Illinois originally included a provision in its law that for a recording to be illegal, the offended party must have had a reasonable expectation that the recorded conversation was private. Every other state but Massachusetts has a similar provision. But in 1994 the Illinois legislature amended the law to delete that provision, in direct response to a ruling by the Illinois Supreme Court throwing out the conviction of a man who recorded two police officers from the back of their patrol car after he'd been arrested.
In 2006, Illinois State Rep. Chapin Rose (R-Charleston) proposed an amendment to the law explicitly making it legal to record on-duty police, but the amendment died in committee.
It will be interesting to see what the courts say about the constitutionality of the law. But regardless of whether it's permitted by the Constitution, the law is wrongheaded public policy. The Illinois legislature could take care of this tomorrow by passing a bill similar to the one introduced by Rep. Rose.