Audio recording law under scrutiny in Illinois

[February 07, 2012]  SPRINGFIELD (AP) -- Tiawanda Moore didn't think she was doing anything wrong when she took out her smartphone and started recording a conversation with two Chicago police officers she says were trying to stop her from filing a sexual harassment complaint against one of their colleagues two years ago.

Moore was promptly arrested and charged with violating a strict Illinois eavesdropping law that bars audio recordings unless all involved parties agree to it. Moore, then 20, spent more than two weeks in jail and faced up to 15 years in prison.

In Illinois, documenting life in the era of smartphones and YouTube can result in felony charges. The little-known law could draw more attention come May, when thousands of protesters and journalists are set to descend on Chicago for the NATO and G8 summits and someone unknowingly may try to record a clash with police.

Some state legislators say it's time to rewrite the law, which faces state and federal challenges. Illinois Attorney General Lisa Madigan has asked the state Supreme Court to address whether it is constitutional.

Lawmakers want to include an exception that allows people to record police as they are doing their jobs.

"I don't believe there is an expectation of privacy for public officials on public property doing public duties," said the bill's sponsor, Rep. Elaine Nekritz, D-Northbrook.

Most states allow anyone taking part in a conversation to audio record it, a policy known as one-party consent. A dozen states require both sides of a conversation to agree. Illinois has an unusual version of the second type, requiring all parties in a conversation to consent. The law, enacted in 1961, only applies to recording conversations, so it is legal to record an event with the sound turned off or an event in the distance in which voices cannot be heard.

The law also includes a narrow exception for radio and television recordings made in public where conversations may be incidentally heard over the main broadcast. But that wouldn't preclude police from arresting a citizen who records audio from an event on a cellphone, as they may not be protected under traditional interpretations of freedom of the press.

Lucy Dalglish, executive director for Reporters Committee for Freedom of the Press, said the "bone-headedness" of the current law could be an embarrassment to the state during the upcoming international summits.

"You might be OK if you are CNN, but not if you're a blogger or look like any citizen on the street," she said.

Police groups have largely stayed out of the debate so far, and say they'll enforce whatever law state officials decide is appropriate.

The Illinois Association of Chiefs of Police doesn't necessarily oppose a change to let people record police activity, but it wants changes of their own, said the group's lobbyist, Laimutis Nargelenas.

"We've been pushing to get one-party consent," Nargelenas said. "If people want to record the police, that's fine, but we want to be able to record them, too."

Chicago's new police superintendent, Garry McCarthy, has said the Illinois eavesdropping law is a "foreign concept" to him. He said police can benefit from having events on tape so there are no false accusations of misconduct later.

In 2009, artist and free-speech blogger Christopher Drew was charged under the eavesdropping law. Police initially arrested him on Chicago's State Street for selling screenprints without a license. But he had blogged about his intention to be arrested for challenging the right to sell art in public, and decided to record the event, placing a digital recorder in a sandwich bag pinned to his red poncho. When police discovered the recorder, his fight for First Amendment rights escalated from a misdemeanor to a Class 1 felony.

"I knew from the beginning that we had to commit to fight the constitutionality of this law," Drew said. He spent three days in jail and faces up to 15 years in prison. His trial date is in late spring.

Moore, though, benefited from an exception to the law, in which recording is allowed when someone believes they are a victim of a crime.

Court documents show her case began when two officers responded to a domestic dispute at Moore's home. She said one of the officers groped her, then left his phone number and told her they should "hook up."

Moore tried to report the misconduct to the Chicago Police Department but said two internal affairs officers refused to file the sexual assault complaint. After an officer shut the door when Moore tried to leave the interview room, Moore set her BlackBerry on the table and recorded several minutes of the conversation.

"She was a woman who just wanted to report sexual misconduct by an officer," said Robert Johnson, an attorney for Moore.

Moore did not return messages seeking comment. She was acquitted last August, and is suing the city of Chicago and the three officers.

[Associated Press; By SHANNON MCFARLAND]

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