Chris Drew was looking for trouble on Dec. 2, 2009, when he set out on Chicago’s State Street to sell art without a permit. He was not looking for the amount of trouble he found.
Drew was carrying an Olympus digital voice recorder. Police had no idea that he was recording the arrest. When you record police, prosecutors or judges in Illinois without their consent, it is a class one felony, punishable by 15 years in prison.
“We weren’t listening in on anything private. We were all public, in public," Drew said. "So by the very definition of eavesdropping, I could not imagine there was an eavesdropping law that made it illegal to listen in on a public conversation.”
He got a break, at least for the moment. Cook County Circuit Court Judge Stanley Sacks ruled that the eavesdropping law is unconstitutional because it is overly broad.
“The Illinois eavesdropping statute potentially punishes as a felony a wide array of innocent conduct. For example, a juror using an audio recorder to record directions to the courthouse for jury duty given by a police officer would be in violation of the statute,” Sacks wrote in his decision.
However, one circuit court judge cannot rule the law off the books. It now heads for the Illinois State Supreme court. Months could go by before justices could produce a ruling.
So at least in Cook County, the state’s attorney will continue to prosecute the eavesdropping law: “As state’s attorney, I’m going to enforce the laws that are on the books. That is the law that is on the books,” Anita Alvarez said.
Bearing down on Chicago in late May is the upcoming NATO summit. It is expected to bring with it throngs of protestors who take video recordings almost as often as they chant slogans. Police could be overwhelmed and transport vehicles could be overstuffed with iPhone-wielding future felons.
“If they're concerned with everybody pulling out their phones and recording, doesn't that take away from the real purpose of the officers being there? Which is to maintain the security of the public, protestors and the people being protested,” Drew’s attorney, Joshua Kutnick, said.
Democratic state Rep. Elaine Nekritz is pushing a bill to repeal the Illinois eavesdropping statutes ahead of the NATO summit. Her repeal passed committee but not unanimously. The Vote was 9 to 2, and even some of the lawmakers who supported the repeal voiced concern.
“I don’t think this will sail through,” Nekritz said. “It will face some pretty significant hurdles."
The hurdles will come from prosecutors and police. The Illinois Fraternal Order of Police issued a statement saying: “By allowing the audio/video recording of witnesses and victims without their knowledge or consent, there will be a chilling effect on witnesses coming forward…There will be victims who are re-victimized. And, there will be tragic split seconds, where a pointed cellphone will be mistaken for a pointed gun.”