Strict eavesdropping law ruled unconstitutional in Illinois case

Kirsten Berg | Newsgathering | Feature | September 16, 2011

An Illinois judge ruled the state’s eavesdropping law unconstitutional as applied to a man who faced up to to 75 years in prison for secretly recording his encounters with police officers and a judge.

“A statute intended to prevent unwarranted intrusions into a citizen’s privacy cannot be used as a shield for public officials who cannot assert a comparable right of privacy in their public duties,” the judge wrote in his decision dismissing the five counts of eavesdropping charges against defendant Michael Allison.

“Such action impedes the free flow of information concerning public officials and violates the First Amendment right to gather such information,” he wrote.

The ruling is the most recent development raising questions about Illinois’ strict eavesdropping statute, which makes it a felony to use a device to audio record or overhear a conversation without the consent of all parties involved, regardless of the circumstances of the interaction.

Allison’s legal troubles began when he recorded his conversations with local police officers who he claimed were harassing him. The officers were seizing old cars he was fixing on his front lawn in violation of a city ordinance, which then forced him to pay a fee to have them returned.

When Allison was brought into court for violating the ordinance, he requested a court reporter so that he could have a record of his trial. The court declined his request and Allison announced that he would record the trial himself.

When he showed up to the courtroom for his trial, the judge immediately asked Allison if he had a recording device and if it was on. He answered yes and the judge had him arrested on the spot for violating her privacy.

When police confiscated Allison's digital device, they found the other recordings. Allison was then charged with five felony counts of eavesdropping, each of which can carry a maximum 15-year prison sentence.

In Thursday’s ruling, Circuit Court Judge David Frankland said that Allison had a First Amendment right to record the police officers and court employees.

The judge also ruled that while it was reasonable to prohibit the defendant from recording in the courtroom, making what Allison did a felony offense was overreaching and irrational.

“The statute [as it is currently written] includes conduct that is unrelated to the statute’s purpose and is not rationally related to the evil the legislation sought to prohibit,” the judge wrote in his opinion. “For example, a defendant recording his case in a courtroom has nothing to do with an intrusion into a citizen’s privacy but with distraction.”

Although some civil rights activists call the decision a small victory, the Illinois eavesdropping law is still in effect.

Earlier this week, a panel of the U.S. Court of Appeals in Chicago (7th Cir.) heard another case challenging the Illinois eavesdropping law in which the American Civil Liberties Union argued that the statute should be changed to allow for the recording of public officials in public places.

One of the judges on the panel hearing the case, however, was quoted by the Chicago Sun-Times questioning the ACLU's arguments.

“If you permit the audio recordings, they’ll (sic) be a lot more eavesdropping. … There’s going to be a lot of this snooping around by reporters and bloggers,” Circuit Judge Richard Posner said. “Yes, it’s a bad thing. There is such a thing as privacy.”

The appeals court is expected to issue a formal ruling on the case in the upcoming months, according to the Sun-Times.

In another case last month, a jury acquitted a Chicago woman who used her cell phone to secretly record a conversation with police investigators about a sexual harassment complaint she was filing against the department. The recording was especially controversial because the investigators allegedly discouraged her from filing the report, saying on the recording “I think it’s something we can handle without having to go through this process…”

The right to film police in the performance of their public duties has also been the subject of debate across the U.S. as arrests for such activities have been on the rise.

In August, the U.S. Court of Appeals in Boston (1st Cir.) ruled that this kind of filming is a “basic and well-established liberty safeguarded by the First Amendment,” in a case involving a complaint filed by a Boston man who filmed the scene of an October 2007 arrest on his cell phone, only to be arrested himself and charged with a violation of Massachusetts wiretapping laws. The most recent ruling in Illinois cited this decision as a “persuasive authority” for ruling on similar cases.