The court challenge was filed by the American Civil Liberties Union.
It's argued that the Illinois eavesdropping act is the most restrictive in the country, and that today's technology has rendered it outdated.
Last month a 20-year-old woman was acquitted of charges that she illegally tape-recorded two Chicago police officers. That case is part of a larger dispute argued Tuesday before the 7th Circuit Court of Appeals.
If you were to walk up to a group of men in Daley Plaza with your iPhone rolling, you can legally take video of them, but if you record their conversation without their permission, that's a class four felony. If you were to attempt to record audio of a police officer in conversation without permission - even if it's on the public way - that's a class one felony, which has a punishment of up to 15 years in prison.
The ACLU argues that the Illinois Eavesdropping Act is antiquated and overly-restrictive, and it wants the ability to record audio of police officers when they're on the public way - most specifically as a means of monitoring how police handle marches and demonstrations.
"You can video the police officer, you can photograph the police officer. They admit that you can listen to the police officer, and even write down what the police officer is saying, but you can't turn on the audio button. It simply doesn't make any sense," said Harvey Grossman, ACLU
The ACLU argued to the Appeals Court Tuesday that the eavesdropping law violates the First Amendment. The Cook County State's Attorney's Office disagrees and contends that audio recording of police could intrude on investigations. Appeals Court Judge Richard Posner at one point Tuesday seemingly agreed.
"It's not just privacy. It's the police being able to operate effectively without everything they do being publicized," said Judge Posner.
But smartphones are ubiquitous. If someone believes a cop on the public way is out of line, should they not be able to record that? On the other hand, if a cop is getting sensitive information from a witness, does it belong on YouTube?
"The dissemination and broadcast of that material prior to completion of an investigation, I think still should still be prohibited. But how to punish it is a different question," said Prof. Harold Krent, dean IIT Kent College of Law.
"I know I wouldn't want to be recorded doing my job. What if the words are misconstrued?" said Tommie Harris.
"You can be taken out of content. Unless you get the whole conversation from beginning to end, you can miss out on what's really going on and what's really meant," said Mike Hartline.
Professor Krent contends that felony charges for audio recording are far too excessive, and that the omnipresent smartphone ought to compel legislators to rework the eavesdropping act.
The more immediate issue is the ACLU's request to be able to hit the audio button when it monitors police. The district court earlier this year ruled against the ACLU.