Special Segment: Felony Eavesdropping
September 27, 2011 (CHICAGO) (WLS) -- This is the story of Louis Frobe, but it's also about others who have run afoul of the Illinois eavesdropping law, one of the most restrictive of its kind in the country. It requires that all parties to a conversation give their consent before you can record legally record it.
Say you take out your smart phone and you start taking pictures of police officers making an arrest. The pictures and video are allowed by law, but you must have permission before you record the audio, even if the officer is on the public way.
"I'm just an ordinary citizen. I was on my way to the movies, and all of a sudden I'm facing a felony and 15 years in prison," Frobe told ABC7.
Frobe calls it the worst experience of his life. He was on his way to a late evening movie on an August night last year when he was stopped for speeding in far north suburban Lindenhurst. He didn't believe he was in a 35-mile-an-hour zone, and he figured if he was going to get ticket he wanted to be able to document his challenge with video evidence, so he got out his flip camera, which he was not very adept at using.
At one point he held it out the window trying to record where he was. When the officer, being recorded on his squad dash cam, walked back to Frobe's car, the officer saw Frobe's camera.
Officer: "That recording? Frobe : "Yes, Yes, I've been... Officer: "Was it recording all of our conversation? Frobe: "Yes. Officer: "Guess what? You were eavesdropping on our conversation. I did not give you permission to do so. Step out of the vehicle."
Louis Frobe was then cuffed and arrested for felony eavesdropping.
"I was terrified. I was absolutely terrified. I was begging him, I said I didn't know about this law. Would you please take the camera - this is no big deal - and smash it. You know I didn't know about the law," Frobe told ABC7.
Frobe spent a night in the Lake County jail and was released on bond the next day. Later the charges against him were dropped, but so angry was Louis Frobe that he decided to file a federal lawsuit challenging the constitutionality of the state's eavesdropping law.
"And they had audio and they had video on me, but I'm not allowed to do it to them. I'm in a private car on a public street and it's a public official. Why shouldn't I be able to record what's going on to prove my innocence?" he said.
The Attorney General's office argues that the case should be dismissed and that there's no constitutional standing.
But in a similar case, a Circuit Court judge in downstate Crawford County earlier this month declared the state's eavesdropping act unconstitutional. Last month, the First Circuit Federal Court of Appeals found in favor of Boston man who used his cell phone to record several police officers making an arrest on Boston common. They are part of a growing number of cases that test the intent of a law and its intersection with technology - the omnipresent smart phone.
And in Louis Frobe's case?
"It's a public conversation about a public function. A traffic stop," attorney Torri Hamilton said.
Hamilton says the law should turn for public officials on the public way where there is a reasonable expectation of privacy in the conversation.
"He has no reasonable expectation that his conversation with Louis is private, and so therefore it shouldn't be criminal to record it," said Hamilton.
Police and prosecutors argue that audio recording of officers - even when they are on the public way - could hamper investigations and jeopardize witnesses, especially in a day when what's recorded can be instantaneously uploaded to YouTube or other platforms.
The Lindenhurst police chief says his officer who stopped Louis Frobe was simply following the law. The chief also points out that if the same thing had happened 13 miles to the north in Wisconsin, there wouldn't have been an arrest because the eavesdropping law there is much less restrictive.
Frobe's case is in federal district court in Illinois.
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