Jacob Sullum
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On Jan. 13, 2009, Michael Allison brought a digital recorder to the Crawford County Courthouse in Robinson, Ill., where he was contesting a citation, because he had been told there would be no official transcript of the proceedings. He was immediately confronted by Judge Kimbara Harrell, who accused him of violating her privacy and charged him with eavesdropping, a felony punishable by up to 15 years in prison.

Because Allison had recorded conversations about his legal situation with police and other local officials, he soon faced four more eavesdropping charges, raising his possible sentence to 75 years. The case against Allison vividly shows how the Illinois Eavesdropping Act, the target of a constitutional challenge that was recently heard by a federal appeals court, undermines transparency, civil liberties and legal equality.

The law's double standard is clear. It allows police officers to make audio recordings of their encounters with citizens but forbids citizens to do the same without permission. Recording police, prosecutors or judges is a Class 1 felony with a maximum sentence of 15 years, while recording anyone else is a Class 4 felony with a maximum sentence of three years.

The law seems deliberately designed to shield police from public scrutiny. In a 1986 case involving a motorist who recorded the conversation between two officers while he was being detained in their patrol car, the Illinois Supreme Court ruled that eavesdropping occurs only in "circumstances which entitle (the parties) to believe that the conversation is private and cannot be heard by others." The Illinois legislature responded by amending the eavesdropping statute to eliminate that requirement.

Under current law, anyone in Illinois who records cops -- even in public, even while they are performing their official duties -- can be charged with a felony. Whether charges are brought may depend on how embarrassing the recording is.

In August, for instance, a former stripper named Tiawanda Moore was tried for eavesdropping after she used her Blackberry to record a conversation in which she said two internal affairs investigators encouraged her to drop a sexual harassment complaint against a Chicago police officer. "I think it's something we can handle without having to go through this process," one investigator says in the recording. The jury acquitted Moore.

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Jacob Sullum

Jacob Sullum is a senior editor at Reason magazine and a contributing columnist on Townhall.com.
 
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