Illinois’ eavesdropping law makes it illegal to audio record a conversation in Illinois unless everyone being recorded gives their consent. This is one of the stricter laws in the country on eavesdropping and recording a conversation. Many states only require that only one side be aware of the recording. The main criticism of the law has been that it is overly broad and ends up criminalizing innocent behavior. It’s also been criticized in that making a recording is a form of speech protected by the First Amendment.
A few years ago, the ACLU challenged the part of the law that increased the penalty for making an audio recording of a police officer without their consent. The ACLU basically argued that if the officer was in public, on duty and speaking loud enough that others could hear him or her, then it shouldn’t be illegal to make an audio recording. Offenders faced a Class 1 felony and up to 15 years in prison, while at the same time there was an exception allowing officers to record citizens without their consent.
In 2012, an appellate court agreed with the ACLU and put a stop to prosecutions based on violations of the eavesdropping law, and the Illinois Supreme Court officially struck down the law this month. With all the smart phones out there, and people constantly documenting even the smallest things on video, it would seem virtually impossible to enforce the law. More importantly, and the court acknowledges this, the law opens up the huge potential for being prosecuted for innocent behavior. If you pull out your phone to record your kid at their dance class, and inadvertently record a conversation of the people next to you, you would be violating the Illinois eavesdropping law – a criminal offense.
The judge who wrote the recent Supreme Court opinion also pointed out the inconsistency that it’s perfectly legal to listen in on a conversation, write down what you hear, and then publish that conversation. It certainly seems out of step with a law that says you can’t record that same conversation, even if you never publish or share it.
So what’s next? Illinois lawmakers are going to have to rewrite the eavesdropping law. It’s not all going out the window, because there is still some privacy that should be protected. The current law just goes too far. The line likely will be drawn in situations where someone is recorded in a place and at a time when they have a legitimate “expectation of privacy.” So if you are having a loud argument on the street, it’s fair game. But if you are having that same argument in your home, it might be a different story. Hopefully those writing the law get it right this time.
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