Anytime something interesting happens in public these days, you can expect that a few bystanders might whip out their phones and take pictures. Some might even shoot a little video to later upload to YouTube or post on a Facebook page. 

In recent years, some Illinoisans have learned the hard way that recording a police officer on duty without permission carries a heavy penalty under the state’s eavesdropping law. 

In Illinois, it is illegal make an audio recording of someone without his or her consent. Recording without permission is a Class 4 felony, which is punishable by up to three years in prison. However, if you record a law enforcement official at work, you could face a stiffer penalty. 

Making an audio recording of a law enforcement official doing his or her job is a Class 1 felony that carries a penalty of up to 15 years in prison. As far as charges and potential penalties go, that makes recording a police officer on par with criminal sexual assault or possessing more than 11 pounds of marijuana. 

Most people do not even realize that recording audio of an on-duty cop could land them in jail. The current law is unrealistic and turns unwitting citizens into felons. It also does not account for the growing landscape of citizen journalists and activists who use the Web as a way to make their marks. 

But it seems Illinois law will likely catch up with technology one way or another.

The defendant in the most recently decided court case on the issue is an activist who got more than he bargained for from a protest. 

In 2009, Christopher Drew, executive director of the Uptown Multi-Cultural Art Center in Chicago, was arrested for selling art on Loop Street without a permit. Drew knew he could be arrested; he was trying to challenge the city’s permitting laws that classify selling art the same as hawking watches and purses. Drew argues that “art is speech” and should not require a license for sale. “Chicago’s laws and parks policies have strangled any hope of organizing in Chicago ongoing open-air art scenes where artists can sell their art freely,” reads a statement from the art center’s website. 

After police found the recorder Drew had been using to record his act of civil disobedience, they also charged him with a felony count of eavesdropping. 

In March, Cook County Judge Stanley Sacks tossed out Drew’s case and found the state’s eavesdropping law unconstitutional. However, Sacks did not rule based on Drew’s argument that the First Amendment protects his right to gather information on police while they carry out their jobs in public. Sacks instead said that the state’s law is too broad and that it could make “wholly innocent conduct illegal.” 

Sacks pointed to a parent taping a child’s soccer game and inadvertently making an audio recording of bystanders without their consent. “Although it is extremely unlikely that this doting parent would be charged with a felony offense, the fact remains that she could, thusly punishing innocent conduct,” the opinion said. A Crawford County judge had previously ruled the law unconstitutional in a trial for a man charged with taping law enforcement officials, including a judge. That case has been appealed to the Illinois Supreme Court. 

Another recent incident involved a woman taping police because she felt she was the target of intimidation. 

Tiawanda Moore had never heard of the eavesdropping law when she was arrested in 2010. Moore said she recorded two Chicago Police Internal Affairs investigators at police headquarters because they were trying to pressure her not to file sexual harassment charges against a police officer. When the investigators saw the telephone in her lap recording their conversation, they arrested her and charged her with a felony. “I don’t feel like I did anything wrong,” Moore told ABC7 Chicago. 

Moore claims that a police officer responding to a domestic violence call groped her and gave her his personal phone number. Moore’s recordings from her attempt to file a complaint were played during her trial last summer. The audio included one investigator saying, “I think it’s something we can handle without having to go through this process.” An investigator also told Moore that he could “almost guarantee” that the officer she was complaining about would never bother her again. 

A jury acquitted Moore after deliberating for less than an hour. “The two cops came across as intimidating and insensitive,” Ray Adams, a juror, told the Chicago Tribune. “Everybody thought it was just a waste of time and that [Moore] never should have been charged.” 

Moore is now suing the city for unreasonable seizure of her property, false arrest and malicious prosecution. 

The American Civil Liberties Union says the law not only hurts private citizens, it prevents organizations such as the ACLU from engaging in watchdog activities. The 7th U.S. Circuit Court of Appeals could soon rule on the ACLU’s lawsuit against Cook County State’s Attorney Anita Alvarez that challenges the law.

“Illinois has written a very broad eavesdropping statute which extends to both private and nonprivate conversations, and as a consequence, ordinary people who have made tape recordings of their conversations with police officers on duty and in open places have been prosecuted by state’s attorneys,” says Adam Schwartz, ACLU senior staff council. “The ACLU is harmed by this statute. We have a long tradition of engaging in observation and monitoring of how police officers are doing their jobs in public places. We send people to protests to make sure that police are respecting people’s right to free speech.”

Schwartz says his organization monitors law enforcement activities, such as officers stopping cars at police checkpoints, to make sure that police are following the law. He says being able to record police action would make the program much more effective. 

“We want to take our police monitoring program into the 21st century. We want to not just observe with our eyes and write down with a pen and take photographs. We want to make audio recordings of these police officers … and if we were to do this, just as other people across Illinois have been prosecuted, the ACLU would be prosecuted.” 

In addition to the court battles being fought over the issue, lawmakers are also considering a proposal from Northbrook Democratic Rep. Elaine Nekritz that would allow citizens to record law enforcement officials who are working in a public place. 

“This is a good policy because of the reality of the world that we live in. The law was originally passed decades ago when we had very little means of communication, compared to today when we carry cell phones with cameras, cell phones with video cameras with sound capability,” Robert Loeb, a criminal defense attorney speaking on behalf of the Illinois State Bar Association, said at a recent hearing on House Bill 3944.

While supporters of the current law say there are exemptions for the press, Josh Sharp, director of government relations for the Illinois Press Association, says that the statute is unclear on what journalists can and can’t do. “There’s all kinds of problems with the language that’s in the existing statute.” He also points to the trend of more and more media outlets using content submitted by ordinary citizens who happened to be in the right place at the right time, camera phones in hand.

“Let’s say we post live video that someone caught out on the street?” Sharp asks. 

If that video had an audio track and was captured in Illinois, would a media outlet be using illegally obtained content? Or if a media outlet wants to use the content, would that retroactively transform the citizen into a journalist? And if so, would the exemptions for members of the press apply? Just because something is taped by a man on the street, does that mean it is not news? 

Many recent newsworthy events across the world were captured by bystanders. The death of Iranian protester Neda Agha-Soltan became a haunting and iconic image of the 2009 uprisings. The first image of Capt. Chesley Sullenberger’s now famous landing of the plane in the Hudson River was captured by someone who just happened to be on the ferry heading over to rescue passengers. The Associated Press later purchased the shot that made its debut on the Twitter account of Janis Krums, who took the picture. Bystander video of the shooting of an unarmed man named Oscar Grant by a Bay Area Rapid Transit officer — who later said he meant to reach for his Taser and not his gun — led to the officer being tried and convicted of manslaughter. 

Others argue that a bill like Nekritz’s would make the already complicated eavesdropping statute more difficult to understand and might lead to more citizens breaking the law. During a recent hearing, lawmakers found it debatable whether recording inside a police car would be allowed under the measure. Nekritz said no. Recording the police in your home would also be illegal under the legislation. Some in law enforcement say the state should switch to one-party consent, meaning that you do not have to obtain the consent of others to record them in many situations. Illinois is one of only 11 states that require two-party consent.

Whatever the end result, Illinois’ eavesdropping laws are long overdue for an update.

Illinois Issues, April 2012