Anti-Eavesdropping Law Challenge Ruled Moot

(CN) - A man cannot pursue his challenge to the Illinois Eavesdropping Act because the Illinois Attorney General has promised not to prosecute anyone under the statute, a federal judge ruled.

Louis Frobe, of Lake Villa, Illinois, says he suffers from insomnia, and often spends the night hours by going outdoors to watch nocturnal animals.

However, this habit has led to frequent encounters with local police, whom he estimates have stopped and questioned him 40 times.

Given his numerous unpleasant experiences with the police, Frobe wishes to audio-record his future encounters with officers, which he believes will deter police misconduct, but it is illegal to do so under the Illinois Eavesdropping Act (IEA).

Frobe was arrested in 2010 for eavesdropping when he began videotaping his encounter with an officer who pulled him over for speeding on his way to a late night movie, but charges were never filed against him.

He claims he has a reasonable fear of future arrest and possible prosecution given his frequent interactions with local police, and his past arrest for eavesdropping.

But in a separate case brought by the American Civil Liberties Union, the 7th Circuit ruled that the eavesdropping law is "likely unconstitutional," as applied to audio recording police officers, and instructed the district court to enjoin the state's attorney from prosecuting people under the Act.

The attorney general has since publicly stated that it "will not prosecute or assist in prosecuting Frobe under the [IEA], because any prosecution of Frobe under the facts in his complaint would run afoul of the First Amendment."

Given this promise, U.S. District Judge Rebecca Pallmeyer found Frobe's case moot.

"In the instant case, defendants have given public notice of the policy change, they have explained their reasoning, and they have abandoned the defense of the IEA as constitutional. Thus, it is not 'difficult to conclude that there is no reasonable expectation that plaintiff would be prosecuted under the statute in the future,'" the judge said.

While Frobe unquestionably had standing to challenge the Act when he filed his lawsuit, subsequent federal court rulings in other cases have succeeded in their challenges to the Act, and public officials have conceded the issue.

"Since the time of those decisions and public declarations, there have been no new prosecutions. In short, plaintiff Frobe no longer has a reasonable expectation that the Act will be enforced against him. His claim for injunctive relief is moot," Pallmeyer concluded.

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