Jacob Sullum
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.

Moore's prosecution is one of the cases that the American Civil Liberties Union of Illinois cites in its challenge to the eavesdropping law. It is asking the U.S. Court of Appeals for the Seventh Circuit to rule that "the First Amendment protects people from criminal penalty for openly audio recording the conversations of police officers in the performance of their official duties in public places and forums, while speaking at an ordinary volume -- that is, conversations where there is no reasonable expectation of privacy."

The ACLU says this standard, which the vast majority of states have adopted, is required by the First Amendment. Last month, in an eavesdropping case involving a man who recorded an arrest on the Boston Common because he believed the police were using excessive force, the U.S. Court of Appeals for the First Circuit agreed that "a citizen's right to film government officials, including law enforcement officers, in the discharge of their duties in a public space is a basic, vital and well-established liberty safeguarded by the First Amendment."

Fortunately for Michael Allison, a Crawford County judge found that argument persuasive. "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," Circuit Judge David Frankland wrote two days after the Seventh Circuit heard the ACLU's arguments against the eavesdropping law. "Such action impedes the free flow of information concerning public officials and violates the First Amendment right to gather such information."

Although Frankland dismissed the charges against Allison, prosecutors are expected to appeal, lest uppity citizens get the idea that it's OK to document the public performance of public officials.


Jacob Sullum

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