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Ill. Legislature Passes New Eavesdropping Law

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By Mark Wilson, Esq. on December 10, 2014 4:30 PM

In a pair of cases in March, the Illinois Supreme Court unanimously struck down the state's eavesdropping law. Illinois was a two-party consent state, meaning both parties had to consent to the recording. As interpreted by the court, however, the law's fatal flaw was that it also applied to speech made even in a place where people had no privacy expectation -- like out in public.

Apparently not one to say "no," both houses of Illinois' legislature passed a new version of the law that critics say suffers from the same constitutional defects as the old one.

Reasonable Expectations of Privacy

The old law was overbroad, the state supreme court said, because it prohibited "a whole range of conduct involving the audio recording of conversations that cannot be deemed in any way private," like recording a public speech or -- especially -- "interactions of police officers with citizens."

Senate Bill 1342, which is ready for the governor's signature, makes clearer what a "private" conversation is. Under the new law, something is private if the circumstances reasonably justify an expectation of privacy, as determined by "a privilege, immunity, or right established by common law, Supreme Court rule, or the Illinois or United States Constitution."

According to the Illinois Policy Institute, "a citizen could rarely be sure whether recording any given conversation without permission is legal." While the bill does make clear that the parameters of a reasonable expectation of privacy are governed by named sources of law, we agree with the Policy Institute that "that's not something an ordinary person can be expected to figure out."

A Trend Toward Recording

Several states actually have laws still on the books that prevent ordinary citizens from recording police encounters in public. Those are quickly going away, however, as courts realize there's a thing called the First Amendment and that recording police can be integral to ensuring that civil rights are respected.

Indeed, police recording via cell phone has helped spark the national controversy over police brutality. Ten years ago, such claims would have been largely ignored by a wider audience as there was no video evidence and nothing compelling to draw people in.

Illinois' new law probably isn't as bad as the critics claim, but its emphasis on "reasonable expectations of privacy" does mean that there will likely be disputes about enforcement, with police and citizens disagreeing over whether a conversation is private or public.

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