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Here's a question a Chicago street artist continues to ask as he faces prison for recording his own arrest. If the government can record us, why can't we record the government? NPR's Cheryl Corley has the story.
CHERYL CORLEY: This case in Chicago, where an artist is charged with violating the state's�eavesdropping law, actually began as civil disobedience.
(Soundbite of drumming)
As a group of kids drummed on buckets on Chicago's State Street, Chris Drew stood nearby. It was late December, lots of holiday crowds, and Drew was dressed for attention in a blazing red poncho covered with art patches that he was selling for a dollar each.
Drew is a free-speech advocate, and his State Street appearance was part of an ongoing protest of a Chicago law restricting where artists can sell their wares. When a Chicago police officer noticed him in the off-limits area, he told him to move along.
Unidentified Man #1: You cant sell stuff out here, buddy.
Drew was hoping to get arrested to test the city's law, and he got his wish. Prosecutors charged him with two misdemeanors. He was not expecting what came next. After police found a small recording device in his belongings, Drew was charged with a felony for violating the Illinois eavesdropping law, which requires all involved to consent to any audio recording.
Mr. CHRIS DREW (Artist): And shortly thereafter, they put a bond of $20,000 on me for selling art for a dollar on State Street, and audiotaping my own arrest.
CORLEY: The misdemeanor charges were dropped. But the felony charge remains and with it, a possible four- to 15-year prison term. Eavesdropping and wiretap laws were designed to protect private conversations. So the question becomes, what's private and what's not.
In 12 states, including Illinois, recording the audio of an on-duty officer in a public place without consent could be considered illegal, and perceived violations likely to be played out in court - like in a case in Massachusetts.
Three years ago, lawyer Simon Glik flipped open his cell phone and recorded some Boston police officers he thought were using excessive force in an encounter with a young man. Glik ended up being arrested when an officer asked if he had recorded any sound, and Glik replied yes. Sarah Wunsch, an attorney with the Massachusetts ACLU, argues the state law is not being interpreted correctly.
Ms. SARAH WUNSCH (Attorney, ACLU): To say that in the United States of America this would be considered a crime, to record, is crazy. You know, if the police can record a stop, the ordinary citizen needs to be able to observe and record whats going on in a public place. There is no right to privacy of the police officers in that context.�
CORLEY: Then there's the controversial case of Anthony Graber, a 25-year-old motorcyclist who was speeding along an interstate in Maryland earlier this year, his helmet camera rolling. When he came to a stop at an exit, a state trooper in plainclothes and an unmarked car blocked his access and approached Graber, gun in hand.
Unidentified Man #2: Get off the motorcycle. Get off the motorcycle. Get off the motorcycle, State Police.
CORLEY: Graber was ticketed, but after he posted the encounter on YouTube, authorities got a warrant, seized his camera and computers, and the Harford County prosecutor, Joseph Cassilly, charged him with three felonies for violating the state's wiretap law.
Mr. JOSEPH CASSILLY (Hartford County prosecutor): If you don't make the tape public, then the government really wouldn't know that you had made a recording.
CORLEY: Even so, Cassilly says he disagrees with the law. He calls it too broad, and says it criminalizes the conduct of citizens. But he says there is another side to consider.
Mr. CASSILLY: Police officers need to do a job where often, they need to take statements or information from people that are reluctant to talk to the officer, or reluctant to give information to the officer.�
CORLEY: And that, says Cassilly, means police conversations with witnesses or victims should be private. He suggests, and others have called for, a rewrite of Maryland's law. An attempt to revise the Illinois statute failed a few years ago. Now, it's being challenged in federal court. Harvey Grossman, with the ACLU of Illinois, argues its unconstitutional.
Mr. HARVEY GROSSMAN (ACLU): The general theme that drifts through these cases is very clear. Law enforcement is rebelling, and is refusing to allow public scrutiny of their behavior. And they're using the eavesdropping statute as a weapon against civilians.�
CORLEY: And with the proliferation of cell phones and ever-smaller recording devices, more cases involving just who gets to record what's said between police and civilians will likely end up in court.
Cheryl Corley, NPR News, Chicago.�
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