CHICAGO (MCT) — When a Cook County jury in August acquitted a woman of violating Illinois’ strict eavesdropping law, an unassuming man with wire-rimmed glasses and wispy white hair sat in the gallery, quietly taking notes.
Chris Drew had good reason to keep an eye on the case — he’s facing trial on the same felony charge of eavesdropping on a public official, which carries up to 15 years in prison.
An artist whose ’60s upbringing instilled a deep respect for questioning authority, Drew, 61, is accused of making an illegal audio recording of Chicago police during a 2009 arrest for selling art on a downtown street without a permit.
Drew intended the incident to be a test of the city’s permit laws. But now his case has wound up at the forefront of a much bigger effort to challenge the constitutionality of Illinois’ eavesdropping law, which makes it illegal to audio-record police without their consent, even when they’re performing their public duties.
“He’s become the accidental eavesdropping activist,” Drew’s lawyer, Joshua Kutnick, joked in a recent interview.
Illinois is one of a handful of states in which it is illegal to record audio of public conversations without the permission of everyone involved and has one of the strictest eavesdropping laws in the country.
Opposition to Illinois’ law has been gaining traction for months as several cases have been tossed out of court.
In August, while Drew watched, Tiawanda Moore, 21, was acquitted of illegally recording two Chicago police internal affairs investigators whom she believed were trying to dissuade her from filing a sexual harassment complaint against a patrol officer. One juror later said he and his fellow panelists considered the case “a waste of time.”
The next month, a Crawford County judge ruled the law unconstitutional and dismissed eavesdropping charges against a man accused of recording police and court officials without their consent.
In Chicago, the 7th U.S. Circuit Court of Appeals is expected to rule on a federal lawsuit against the law filed by the ACLU in 2010.
“It’s turned into something bigger,” Kutnick said. “As you’re seeing, the whole state of Illinois is looking at this.”
When Drew set up his wares on State Street in the Loop on Dec. 2, 2009, he knew he might be arrested. So he slipped a voice recorder in his pocket to document any interactions with police.
Within about an hour, Drew was arrested and charged with peddling without a license. He was shocked, however, when he was also charged with eavesdropping.
“I knew it was a violation to tape-record private conversations,” Drew said in a recent interview. “I understood what eavesdropping means. Eavesdropping does not mean recording a public conversation. The conversation we were having — if it was a conversation at all — the words that we were having were all public words.”
Illinois’ eavesdropping ban was extended in 1994 to include open and obvious audio recording, even if it takes place on a public street where no expectation of privacy exists and in a volume audible to the “unassisted human ear.”
Kutnick said the law makes no sense today, when so many people carry smartphones that can shoot video and thousands of public and private surveillance cameras are stationed throughout the city.
“There’s no place for it in today’s sophisticated, technological society,” he said. “Now the first thing anybody does (is) pull out the phone, pull out the recorder. Laws should track what’s happening in the world, and this is a perfect example of where it is not keeping up.”
Officials with the Fraternal Order of Police in Chicago have said the union backs the law because it keeps people from making baseless accusations against officers by recording them and then releasing snippets that don’t reveal the full context of the incident.
But Kutnick counters that people should have the right to record public police activity and that officers who perform their duties properly shouldn’t mind the scrutiny.
“The legitimate police officer, the police officer who’s doing the right thing, should only welcome these recordings because then they can prove, ‘I did everything by the book,’ ” Kutnick said.
Still, recording police who are doing their jobs properly can invite unwanted attention.
Ralph Braseth, a journalism professor at Loyola University Chicago, said he was handcuffed and lectured by a Chicago police officer in November after he videoed the officer and his partner arresting a teen who jumped a turnstile at the CTA’s Red Line station at Chicago Avenue.
Braseth said he was shooting video for a documentary about teens from poor neighborhoods who come downtown on weekends, and he happened to be in the station when the arrest took place. The officers were professional when arresting the teen and “didn’t do anything wrong,” Braseth said.
“There was nothing damning on that tape,” he said.
Braseth said one of the officers saw him recording the arrest, handcuffed him and put him in the back of a squad car outside the station. The officer never mentioned the eavesdropping law. Instead, he told Braseth he “had no business doing what (he) was doing” and said that videoing officers “interferes with the work of police,” according to the professor.
The officer released Braseth after about 25 minutes, but before he let Braseth go, he asked to see the video, the professor said. Braseth said that when he played the video on his camera, the officer hit the delete button and then told him to have a good night.
Braseth has since filed a complaint with the Independent Police Review Authority, which forwarded the case to Chicago police internal affairs investigators.
While Braseth said he understands why some police officers don’t like to be recorded, he said Illinois’ eavesdropping law “should have been done away with a long time ago.”
“The citizens of Chicago employ the police officers, and they are acting as agents for our government,” Braseth said. “I don’t necessarily think it’s my job to police the police, but I think it’s a good idea for them to know that that can happen at any time. It’s one of the checks and balances that we have. It’s so fundamental.”
Many challenges against the law stem from its vague wording and exceptions.
About five years ago, Illinois state Rep. Chapin Rose, R-Charleston, set out to rewrite the law to provide some “bright line rules” on exactly when and where recording someone was illegal. His bill sought to amend the language to make it legal to record the official duties of the police in public as long as the “physical act of recording does not interfere with those duties.”
Rose, a former prosecutor, said in a recent interview that the idea was not warmly received.
“I put the bill in and it went absolutely nowhere,” he said. “I couldn’t even get interest in it in committee.”
The bill died in the Illinois House Rules Committee in January 2007. Rose said, to his knowledge, there have been no efforts to update the law since.
Despite opposition from some law enforcement groups and a reluctance among lawmakers to revise the law, Drew said, he believes it’s only a matter of time before the law is changed, especially if more people are charged with recording police in public.
“It affects everybody,” he said. “Citizens are … telling each other, ‘You’re damn right we have this right, and you’re damn right we’re going to use it.’ ”