The American Civil Liberties Union of Illinois is filing a federal lawsuit challenging the Illinois Eavesdropping Act that criminalizes recording public conversations without the consent of all parties. The ACLU claims that police routinely record encounters with drivers they pull over, but drivers are not allowed to record police conversations. -db
August 19, 2010
By Becky Schlikerman and Kristen Mack
It’s not unusual or illegal for police officers to flip on a camera as they get out of their squad car to talk to a driver they’ve pulled over.
But in Illinois, a civilian trying to make an audio recording of police in action is breaking the law.
“It’s an unfair and destructive double standard,” said Adam Schwartz, a lawyer with the American Civil Liberties Union of Illinois.
On Wednesday, the ACLU filed a federal lawsuit in Chicago challenging the Illinois Eavesdropping Act, which makes it criminal to record not only private but also public conversations made without consent of all parties.
With cell phones that record audio and video in almost every pocket, the ability to capture public conversations, including those involving the police, is only a click away. That raises the odds any police action could wind up being recorded for posterity.
Opponents of the act say that could be a good thing and certainly shouldn’t lead to criminal charges.
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. If they complete the terms of the sentence and stay out of trouble, the charges will be dismissed, Steinberg said.
Nonetheless, the episode was an embarrassing experience, said the brothers, who live in Chicago’s Old Town neighborhood. They welcomed the ACLU’s lawsuit.
“I’ve been waiting for something like this,” Adrian Perteet said. “I don’t want it happening to anyone else.”
Illinois is one of only a few states, including Massachusetts and Oregon, where it is illegal to record audio of conversations that take place in public settings without the permission of everyone involved.
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.”
Experts said that although statutes like Illinois’ have been on the books for years, more arrests have occurred in recent years because of the prevalence of cell phone cameras that also record audio.
Robb Harvey, an intellectual property lawyer in Tennessee, said it’s likely there will be more widely disseminated videos with audio that show alleged police misconduct and more efforts by law enforcement to stop such recordings from being made.
Harvey and other attorneys said eavesdropping statutes were not intended to criminalize recording police officers in public.
“It’s a stretch to apply surveillance laws to a situation on the street with an encounter between the police and the public,” said Maryland defense attorney Steven Silverman. “An officer has no expectation of privacy when he makes a traffic stop or arrest in the course of his workday.”
Silverman refers to cases similar to one involving the Perteets — two of which are pending in Maryland, which has a similar eavesdropping law — as “contempt of cop.”
“The backlash is coming from embarrassment,” he said of police reaction to being recorded. “These are archaic statutes, made in a time when technology was different. The laws need to catch up.”
The defendant in the ACLU lawsuit is Cook County State’s Attorney Anita Alvarez, whose office is pursuing an eavesdropping case against Chicago artist Chris Drew.
In December 2009, Drew intentionally set out to break the city’s anti-peddling law by offering handmade, screen-printed patches for $1 on State Street.
The Rogers Park artist wanted to challenge the law that requires people selling their wares on the street to carry permits. Drew had a digital voice recorder tucked inside the red poncho he was wearing, and when police moved in, he made an audio recording of the arrest.
Now, in addition to charges for peddling illegally, Drew faces a felony eavesdropping charge. He is fighting the charges.
People “have the right to defend themselves and bring evidence of what the police said to them in public and bring it into public court,” he said.
Alvarez’s office said it received a copy of the ACLU suit Thursday afternoon, had not had a chance to review it and could not comment.
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’ eavesdropping law has been challenged before. In 2004, Martel Miller and Patrick Thompson were making a documentary contrasting the lives of minority residents of Champaign with students attending the University of Illinois. They filmed multiple traffic stops and were charged with eavesdropping, according to court records.
The charges were later dropped, according to court records, but the two men filed a federal lawsuit saying their constitutional rights had been violated by the city of Champaign, police officers and county officials.
The lawsuit was settled for cash, but Thompson declined to reveal how much was awarded.
Richard Goehler, a First Amendment lawyer in Ohio, said eavesdropping felony convictions have been secured in other states, which makes the ACLU’s lawsuit necessary and timely.
“This suit comes at an important time,” Goehler said. “It has merit and will hopefully stem the tide of these kinds of prosecutions.”
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