Eavesdropping Laws Mean That Turning On an Audio Recorder Could Send You to Prison

Christopher Drew is a 60-year-old artist and teacher who wears a gray ponytail and lives on the North Side. Tiawanda Moore, 20, a former stripper, lives on the South Side and dreams of going back to school and starting a new life.

Chris Drew was arrested by the Chicago Police for selling art on the streets without a peddler's license. Drew used an audio recorder during his arrest and now faces eavesdropping charges. Drew is in his studio.
Jose More/Chicago News Cooperative

About the only thing these strangers have in common is the prospect that by spring, they could each be sent to prison for up to 15 years.

“That’s one step below attempted murder,” Mr. Drew said of their potential sentences.

The crime they are accused of is eavesdropping.

The authorities say that Mr. Drew and Ms. Moore audio-recorded their separate nonviolent encounters with Chicago police officers without the officers’ permission, a Class 1 felony in Illinois, which, along with Massachusetts and Oregon, has one of the country’s toughest, if rarely prosecuted, eavesdropping laws.

“Before they arrested me for it,” Ms. Moore said, “I didn’t even know there was a law about eavesdropping. I wasn’t trying to sue anybody. I just wanted somebody to know what had happened to me.”

Ms. Moore, whose trial is scheduled for Feb. 7 in Cook County Criminal Court, is accused of using her Blackberry to record two Internal Affairs investigators who spoke to her inside Police Headquarters while she filed a sexual harassment complaint last August against another police officer. Mr. Drew was charged with using a digital recorder to capture his Dec. 2, 2009, arrest for selling art without a permit on North State Street in the Loop. Mr. Drew said his trial date was April 4.

Both cases illustrate the increasingly busy and confusing intersection of technology and the law, public space and private.

“Our society is going through a technological transformation,” said Adam Schwartz, a lawyer with the American Civil Liberties Union of Illinois, which last August challenged the Illinois Eavesdropping Act in federal court. “We are at a time where tens of millions of Americans carry around a telephone or other device in their pocket that has an audio-video capacity. Ten years ago, Americans weren’t walking around with all these devices.”

He said that when “something fishy seems to be going on, the perfectly natural and healthy and good thing is for them to pull that device out and make a recording.”

The Illinois Eavesdropping Act has been on the books for years. It makes it a criminal offense to audio-record either private or public conversations without the consent of all parties, Mr. Schwartz said. Audio-recording a civilian without consent is a Class 4 felony, punishable by up to three years in prison for a first-time offense. A second offense is a Class 3 felony with a possible prison term of five years.

Although law-enforcement officials can legally record civilians in private or public, audio-recording a law-enforcement officer, state’s attorney, assistant state’s attorney, attorney general, assistant attorney general or judge in the performance of his or her duties is a Class 1 felony, punishable by up to 15 years in prison.

The A.C.L.U. filed its lawsuit after several people throughout Illinois were charged in recent years with eavesdropping for making audio recordings of public conversations with the police. The A.C.L.U. argued that the act violates the First Amendment and hinders citizens from monitoring the public behavior of police officers and other officials.

On Jan. 10, a federal judge in Chicago dismissed the suit for the second time. Mr. Schwartz said the A.C.L.U. would appeal. Andrew Conklin, a spokesman for Anita Alvarez, the Cook County state’s attorney, said, “We did feel the A.C.L.U.’s claims were baseless and we’re glad the court agreed with us.” Beyond that statement, Mr. Conklin said, “we have no comment because we have these two cases pending.”

Mark Donahue, president of the Fraternal Order of Police, said his organization “absolutely supports” the eavesdropping act as is and was relieved that the challenge had failed. Mr. Donahue added that allowing the audio recording of police officers while performing their duty “can affect how an officer does his job on the street.”

Mr. Drew, the founder of the Uptown Multi-Cultural Art Center, had tried to get arrested three previous times before he went to the Loop on Dec. 2, 2009, to make another effort to challenge the city’s ordinance requiring people to have permits to sell art or other goods on the street.

He put on a bright red poncho marked “Art for sale — $1” and more than a dozen plastic sandwich bags stuffed with postcard-size cloth “art patches” pinned to the back and front of the poncho. In one of the bags he also carried a digital recorder.

The police arrived shortly after 1 p.m. and told him he had to stop selling the patches. Mr. Drew refused and was arrested in front of Macy’s as Christmas shoppers passed by.

A few feet away, a friend of Mr. Drew’s recorded the encounter on a video camera and later posted it on YouTube. At the police station, Mr. Drew’s Olympus recorder was discovered. It was still recording.

“I expected to be charged with a misdemeanor,” Mr. Drew said. “I didn’t know about the eavesdropping law. But when you fight for your rights, you have to expect anything. I have a ’60s bent to me. I won’t back down. I won’t be intimidated. From the moment I comprehended these charges, I knew we had to change this law.”

Ms. Moore’s case is more complicated and “disturbing,” said her lawyer, Robert W. Johnson, who is representing her pro bono.

Ms. Moore lived with her boyfriend at the time of the incident and theirs was a stormy relationship, filled with fights and visits by the police, Mr. Johnson said. Last July, the boyfriend called the police and said he wanted Ms. Moore out of his house. But by the time the police arrived, Mr. Johnson said, the couple had calmed down. Still, one of the officers talked to Ms. Moore upstairs while his partner interviewed the boyfriend.

On Aug. 18, Ms. Moore and her boyfriend went to Police Headquarters to file a complaint with Internal Affairs about the officer who had talked to her alone. Ms. Moore said the officer had fondled her and left his personal telephone number, which she handed over to the investigators.

Ms. Moore said the investigators tried to talk her out of filing a complaint, saying the officer had a good record and that they could “guarantee” that he would not bother her again.

“They keep giving her the run-around, basically trying to discourage her from making a report,” Mr. Johnson said. “Finally, she decides to record them on her cellphone to show how they’re not helping her.”

The investigators discovered that she was recording them and she was arrested and charged with two counts of eavesdropping, Mr. Johnson said. But he added that the law contains a crucial exception. If citizens have “reasonable suspicion” that a crime is about to be committed against them, they may obtain evidence by recording it.

“I contend that the Internal Affairs investigators were committing the crime of official misconduct in preventing her from filing a complaint,” Mr. Johnson said. “She’s young. She had no idea what she was getting into when she went in there to make a simple complaint. It’s just a shame when the people watching the cops aren’t up to it.”

Days later, accompanied by Mr. Johnson, Ms. Moore returned to Internal Affairs and was able to file a full complaint. There is a continuing investigation of Ms. Moore’s charges against the officer, a Police Department spokesman said.

Meanwhile, Ms. Moore is in Cook County Jail after another domestic dispute with her boyfriend, Mr. Johnson said.

In a tearful telephone interview from jail, Ms. Moore said that when she went to Internal Affairs she was only trying to make sure no other women suffered at the hands of the officer.

“I’m scared,” she said. “I don’t know what’s going to happen now. I don’t want to be in jail. I want to make my parents happy and proud of me.”