This is one of those technology and legal stories that is hard to believe in this day and age. If you are in Illinois, you better be careful where you point your cameraphone or voice recorder. Chris Drew, a Chicago artist, and Tiawanda Moore, a former stripper, are facing up to 15 years in prison for eavesdropping, according to a story in the Chicago News Cooperative. Drew used an Olympus voice recorder to commit his crime and Moore used her Blackberry.
Moore is scheduled to go on trial early next month for recording Internal Affairs investigators when she filed a sexual harassment complaint. Moore claims the investigators tried to get her to drop her complaint, so she took out her Blackberry and started a recording which resulted in her arrest. Drew goes on trial in April for recording his conversation with Chicago police officers, without their permission, when he was arrested for selling art without a permit. It’s just a misdemeanor to sell art with no permit, but the voice recorder is causing much bigger problems.
Both are being charged under the rarely enforced The Illinois Eavesdropping Act, which makes it illegal to audio-record either private or public conversations without the consent of all parties. Illinois is one of 12 states with “two-party consent” eavesdropping laws on the books.
A challenge to the law failed earlier this month when a US District Judge ruled there is no “right to audio record,” claiming it would be “an unprecedented expansion of the First Amendment.” That’s saying there is freedom of speech, but even in public, there isn’t freedom to record. That may come as a shock to millions of iPhone, Android, and Blackberry users.
Here’s the kicker, which got both Drew and Moore in deeper trouble, according to the story. Audio recording a civilian in Illinois is a felony with up to 3 years in prison the first time you do it and up to 5 years if you do it again. But the penalties are much stiffer if you record certain people.
Audio-recording 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 is a Class 1 felony, punishable by up to 15 years in prison.
Most states have an exception for civilians recording police conversations in public. But not Illinois.
There is an exception in Illinois that allows law-enforcement officers to legally record civilians in private or public. But, not the other way around.
Nowadays, nearly everyone is carrying around a camera and phone capable of making audio recordings. As Adam Schwartz, an ACLU lawyer who has challenged the law pointed out, when “something fishy seems to be going on, the perfectly natural and healthy and good thing is for them to pull that device out and make a recording.” You might think twice about making that recording if you are in Illinois.
For a more detailed look at this issue nationally, see this article from reason.com.