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Illinois Supreme Court Declares Eavesdropping Law Unconstitutional

The Illinois eavesdropping statute was declared unconstitutional in two cases that were released on March 20, 2014. The eavesdropping statute prohibited the use of any “eavesdropping device” for the purpose of hearing or recording any part of a conversation without the consent of all parties. That is, the eavesdropping statute did not allow you to listen or record any person’s conversation without their consent.

After the law was initially enacted, later case law determined that the eavesdropping statute should only apply in situations where the conversation was meant to be private. A conversation cannot be private or secret when the individual recording it is also participating in the conversation. People v. Beardsley, a case from 1986, explained this rationale when they allowed the defendant to record a conversation that he had with a police officer when the police officer pulled him over. The court also applies this rationale to telephone conversations where the party recording is also a party participating in the conversation.

However, the current law required that all parties must consent to the recording, overturning the previous case law on the subject. The result, added in 1994, was that regardless of whether the conversation was meant to be private or not, the conversation could not be recorded without the consent of all the parties. As such, any time anyone records a conversation without the consent of all the parties, they are subject to criminal sanctions (with the exception of very few circumstances listed in the statue). The 1994 Amendment created an extremely broad law.

The Illinois Supreme Court determined that restricting the use of audio or audiovisual equipment is a speech suppressant, which is prohibited by the First Amendment. Since the 1994 Amendment expanded the reach of the law to both private and public conversations, the court determined that the law was overly broad. Its purpose was to protect private conversation, but the use extended to both private and public conversations, so it was too broad to fulfill its purpose. That is, it violated too many individual rights to fulfil its intended purpose.

In one of the cases decided March 20, 2014, People v. Clark, the defendant recorded a conversation with an opposing party attorney and a judge in a child support matter. He recorded the conversations because there was no court reporter present and he wanted to preserve the record in his case. Since the recording was made of public officials, he argued that it was his First Amendment “right to gather information by recording public officials performing their public duties.” The court could not find the defendant guilty of violating a law that was overly broad and therefore violated the Constitution, so Clark was determined not guilty.

In the second case, People v. Melongo, Melongo recorded telephone conversations with the Assistant Administrator of the Cook County Court Reporter’s Office, Criminal Division when she was in the middle of a dispute about a transcript in her case. She also posted the conversations on her website. In this case, the court held that not only could Melongo not be in violation of an overly broad statute that is unconstitutional, but the publishing provision also did not limit her ability to put the conversations on her website. The court determined that the publishing provision was further suppressive of Melongo’s First Amendment rights.

In both of these cases, the defendants recorded conversations with public officials as a means to protect themselves. They wanted to have a record later of everything that happened, and since these people were acting in the public capacity, the defendants in both cases had a First Amendment right to record the conversations. If you have questions about how this change in the law may affect you, contact McCarthy, Callas & Feeney at 309-788-2800. We are happy to help with your legal needs.

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