Illinois Eavesdropping Bill Goes to Governor

Illinois Eavesdropping Bill Goes to Governor

  Tuesday, December 23, 2014    Julie Tappendorf

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SB 1342 recently passed both houses of the Illinois General Assembly and is now awaiting action by the Governor.  That bill would amend the Eavesdropping Article of the Illinois Criminal Code to address the Seventh Circuit Court of Appeals' 2012 decision in Alvarez v. ACLU.  That case involved a lawsuit filed by the ACLU against Cook County to block prosecution of ACLU staff from recording recorded police officers in the performance of their public duties.  The Seventh Circuit ruled in favor of the ACLU, finding the law (which requires two-party consent for recordings )unconstitutional.  Specifically, the court ruled that the law "restricts far more speech than necessary to protect legitimate privacy interests."  The U.S. Supreme Court refused to hear the county's appeal, which effectively blocked enforcement of the Illinois eavesdropping law. 

SB 1342 would still require two-party consent for recordings, but only if those recordings are of a “private conversation,” and the person recording the communication does so in a “surreptitious manner.”   The bill defines “private conversation” to mean a conversation between people where the communication between the parties is one where one or more of the parties intended the communication to be of a “private nature under circumstances reasonably justifying that expectation.” “Surreptitious” means that the recording was obtained or made “by stealth or deception, or executed through secrecy or concealment.”

So, what does that mean in practical terms?  It is still a crime for someone to secretly audio or video record interactions in which one of the parties has a reasonable expectation of privacy.  There are still open questions as to what a “reasonable expectation of privacy” means, and how it will be defined and interpreted.  But, based on the new definition of “private conversation,” the law might allow someone to record law enforcement officers on duty since it could be difficult for on-duty police to argue they have a reasonable expectation of privacy in their conversations in public places.  If the law is ultimately signed by the Governor, it seems likely that the courts will be called upon to interpret these new definitions, particularly to provide guidance on what a "reasonable expectation of privacy" is.

Post Authored by Julie Tappendorf