Government watchdogs, speeder led to state's strictness on overhearing

The second of three parts.

Tuesday, January 18, 2000

Kane County Chronicle (IL)

By BRENDA SCHORY

GENEVA – Animal activist Steve Hindi of Geneva said he had no intention of breaking the law when he taped a conversation with St. Charles Police last July.

He said he merely wanted to document his request that they shut down the Kane County Fair rodeo because of animal cruelty.

Instead, when he pulled out his tape recorder, police arrested him for violating the state's eavesdropping law, a class 4 felony, punishable by one to three years in prison, or one-year mandatory supervised release, and a fine not to exceed $10,000. Hindi's next court date is Jan. 27.

His lawyer, Rick Halprin, said the St. Charles Police have no case. "In the statute, it says 'without your consent.' When a public official speaks publicly, he consents. A police officer is a public official," Halprin said.

How did a law purporting to protect privacy end up stopping private citizens from taping conversations with public employees in public places?

Blame some of it on the Better Government Association and Robert Beardsly.

The BGA's role is more legend at this point, while Beardsly is case law.

As BGA chief investigator Mike Lyons remembers it being told, the BGA tape recorded conversations of the Illinois General Assembly in the late 1960s as they talked on the floor, not what they said in the public addresses.

What actually went down is in sealed record at the Chicago Historical Society, but what is remember and retold is that Illinois lawmakers were so furious at being caught saying naughty things on tape, that the very next year, they amended the 1970 state constitution Article one Section 6, to protect the public's right to privacy "from unreasonable invasions of privacy by eavesdropping devices or other means."

In 1976 the Legislature changed the statute from "consent of any one party" to "consent of all parties."

Fast-forward to Jan. 7, 1984, when McHenry County Sheriff's Police stopped Robert Beardsly for speeding.

According to court records, Beardsly refused to give his driver's license to the officer, demanded to speak to a lawyer and refused to give up or turn off a tape recorder.

Beardsly sat in the back of the squad car while the officer and his sergeant sat in front. The two officers talked in the front seat, sometimes eliciting a response or comment from Beardsly. Beardsly continued to tape.

Beardly was charged with eavesdropping because the officers did not give their consent to being taped. Beardlsy's lawyers argued in the circuit court that the law prohibits surreptitious recording of conversations, while Beardsly's recorder was in plain sight. Beardsly lost in circuit court and on appeal.

But the Illinois Supreme Court reversed his conviction, setting a standard of expectation of privacy for recording conversations. On the phone or in a living room, there is an expectation of privacy. On the street, in a restaurant, at a carnival there isn't.

The decision had an unexpected and somewhat embarrassing result, sources say. Lower ranking police officers in various jurisdictions began taping conversations with their superiors, ostensibly to protect themselves from supervisors' unprofessional remarks.

One layer, who asked not to be named, said more than one patrolman caught his chief, sergeant or captain on tape outright telling him not to do his job.

"So he tapes it and sues (his employer) and imagine how that looks," the lawyer said.

In 1994, the Legislature passed a law to undo the Beardsly decision, among several amendments to the 1961 Criminal Code.

It defined a conversation as any oral communication, and restated more clearly the caveat that all parties must consent to being taped or the eavesdropping law is violated – regardless of expectation of privacy or whether the conversation was intended to be private.

"The intent was to overturn Beardsly," says Phil Drays, a staff member for State Sen. Walter Dudych, who co-sponsored the eavesdropping amendment. Robert Loeb, chairman of the State Bar Criminal Justice Committee, helped draft it.

"You should be able to read the law and depend on it," Loeb said. "As technicians, we tried to make it clearer for everybody," Loeb said. If a person read Beardsly, what Hindi did was legal; if a person read the state, it wasn't. Restating the law more clearly removed any ambiguity, Loeb said.

The law made Illinois one of 13 all-party states.

"The federal government and 37 other states allow one person – a single party – to consent for a conversation to be taped," said Loeb.

But according to police sources who asked not to be named, lobbyists for police agencies did not support this amendment because it also inhibits police from wiretapping criminals.

"We just run into a brick wall," the source said, any time they try to make it easier to wiretap suspected drug dealers.

"The last major change we were able to get through was non-consensual eavesdropping for drugs," the source said. "We have an elaborate system of officers trained for that, but it's so cumbersome, we hardly ever use it. There are always abuses, but we need to get where everybody else is, 'referring to other states,' more liberal eavesdropping laws.

"How many drug cases we can't get to in Illinois because the overhear laws are too restrictive? It's a two-edged sword: We can't protect the public from bad people, and the public can't protect themselves."

Illinois Press Association attorney Don Craven added that the law is ridiculous in its implications. He supported the idea that, if there is no expectation of privacy, then taping without consent should not be illegal.

"If you are standing on a mountaintop yelling across the abyss, you have no expectation of privacy," Craven said of the Illinois law. "Yet, if you tape record it without consent, you're eavesdropping.