Break out the smart phones: citizens and professionals now have the right to take audio recordings of public occurrences — including fans yelling at sports events, debates in a park and loud conversations on the street — after a strict Illinois law was declared unconstitutional.
The Illinois Supreme Court decided in March to overturn the 1961 eavesdropping law, which required all parties of a conversation to give consent for the conversation to be recorded. Recording private conversations without consent was punishable by up to five years in prison and a $25,000 fine.
On March 20, the Supreme Court declared the law unconstitutional for its overreaching definition of “privacy” in regard to conversations: Even in situations when a person would have little-to-no expectation of privacy, their speech was legally considered private and protected from being recorded by others.
The prevalence of recording devices such as smartphones makes audio recordings much more common; under the eavesdropping law, an average person recording a public event could have been considered a felon.
The Supreme Court acknowledged that such a broad eavesdropping law criminalized “wholly innocent conduct,” such as accidentally capturing overheard conversations in public. It would also be illegal to record a public arrest or other law enforcement interactions with the intent to prove police misconduct, if the recorder did not first receive consent.
“Illinois’ privacy statute goes too far in its effort to protect individuals’ interest in the privacy of their communications,” the Supreme Court ruling stated. “The statute … burdens substantially more speech than is necessary to serve the interests the statute may legitimately serve.”
According to ACLU Spokesman Ed Yohnka, the organization became deeply involved in fighting Illinois’ eavesdropping law when concerns arose that sending staff to monitor public police interactions with protesters put them at risk of felony charges.
“We see as our fundamental mission protecting people’s First Amendment right to gather information about public officials,” Yohnka said. “In this modern age, we have been concerned about the use of the eavesdropping law to protect individuals recording conversations that really aren’t private conversations.”
Eavesdropping laws differ between states, but the Illinois statute was considered one of the strictest in the nation for requiring “two-party consent,” or the consent of all people involved in a conversation.
California is one of eleven other states that has a similar eavesdropping law, but it does not require police to inform people when they are being filmed or recorded. Some California police are using the law enforcement exception to incorporate wearing body cameras into their field work.
However, most states — including New York, Texas, Wisconsin and Ohio — only require that one person involved in a conversation consents to the recording. In these “one-party consent” states, a person who is not involved in a conversation can still take an audio recording if one person being recorded gives permission.
The now-obsolete Illinois law left a lasting impact on Ralph Braseth, a Loyola professor and manager of student media, who was detained in 2011 for videotaping the public arrest of a teen at a CTA Red Line station.
At the time, Braseth had been working as a freelance journalist on a feature story about African-American teenagers from low-income parts of the city who visit downtown Chicago on the weekends. Braseth was released after being held in the back of a police car and lectured, but the detaining officer erased Braseth’s camera footage.
Hoping to bring awareness to the injustices caused by the Illinois eavesdropping law, Braseth spread his story to various media outlets including Forbes Magazine, The Huffington Post and law blogs. The news of his experience struck a chord with others who had been affected by the strict law.
“Within three days, I had support from every corner of the country,” Braseth said. “I started getting phone calls from people who were actually being charged with the crime, especially two women whose lives had been turned upside down with this. People were going broke and going to prison.”
According to Braseth, the eavesdropping law harmed not only innocent civilians, but prevented citizens from making justified recordings of on-duty cops. He said that officers — like the one who detained him — had become used to the law’s broad definition of privacy.
“I understand that the police aren’t comfortable being videotaped during the course of their work. I’m highly respectful of the work that they do. But it’s in their best interest and our best interest if they are [recorded],” Braseth said.
The Illinois Supreme Court’s decision upheld rulings made in two previous cases — People v. Clark and People v. Melongo — which had declared the eavesdropping law unconstitutional for infringing upon First Amendment rights.
In People v. Clark, defendant DeForest Clark had been indicted on two counts of eavesdropping for recording conversations between himself, his attorney and a judge. The judge had been performing his official duties when the recording occurred, according to court documents.
Circuit Court Judge David Akemann declared the charges unconstitutional after Clark alleged that he recorded the conversation to preserve the record of his case in the absence of a court reporter. He also argued that it was his constitutional right to record public officials performing their duties, according to the court’s ruling.
Clark’s charges were dismissed for violation of substantive due process and First Amendment rights because the recorded conversations took place in the courtroom and hallway outside the courtroom – locations not typically considered private.
In People v. Melongo, defendant Annabel Melongo had been arrested and charged with six counts of eavesdropping for allegedly recording phone conversations with a court employee about an inaccurate court transcript and posting them online.
Melongo — with a bond set at $500,000 — spent 20 months in Cook County jail before her request for the charges to be dismissed was granted. Circuit Court Judge Stephen J. Goebel dismissed the charges for violating free speech rights, according to court documents.
The Supreme Court upheld the circuit court’s ruling by stating that the circumstances in People v. Melongo were similar to those of the People v. Clark case in which it had already dismissed charges as unconstitutional.
In both the Melongo and Clark cases, the ACLU challenged the eavesdropping law’s extensiveness. The organization had previously filed a lawsuit in 2010 that aimed to legitimize using recording devices to monitor police activity.
Challenged by the ACLU, State’s Attorney Anita Alvarez appealed to the Illinois Supreme Court in an attempt to defend the eavesdropping statute despite circuit court decisions in the Clark and Melongo cases.
On March 20, the Illinois Supreme Court upheld the rulings in People v. Melongo and People v. Clark and struck down the eavesdropping law on the basis that it infringes upon First Amendment free speech rights.
The Supreme Court opinion stated that the law overreaches its intentions to protect privacy by criminalizing recordings of what might normally be considered public.
“The fear of having private conversations exposed to the public may have a chilling effect on private speech,” the Supreme Court opinion said. “The eavesdropping statute thus legitimately criminalizes audio recordings in these instances. However, the statute … criminalizes a whole range of conduct involving the audio recording of conversations that cannot be deemed in any way private.”
Richard Devine, an adjunct professor for the Loyola School of Law and former Cook County State’s Attorney, helped bring charges against Melongo in the 2006 computer tampering case, during which she was accused of violating the eavesdropping law and subsequently charged with a felony.
Devine said the [law] did offer valid privacy protection and reasonable cause for prosecution in certain cases.
“It’s a very strict law in that with even one-party consent, you still couldn’t [record]. It was restrictive, but depending on the circumstances it might be necessary to prosecute,” Devine said.
Under the law, prosecution was originally intended to protect privacy in confidential workplace conversations or courtroom proceedings, which could be jeopardized by publicized audio recordings.
Given the advent of technology, Devine said he believes the law’s upheaval will not likely come as a shock to the average person nor the on-duty law enforcement officers who may now legally be recorded.
“Most people today recognize the ubiquity of cellphones and all that they can do. Either your picture can be taken or something can be recorded at any time,” Devine said. “Police officers have come to accept the fact that you should conduct yourself in ways that assume you’re being recorded.”
The Supreme Court’s recent decision to strike down Illinois’ eavesdropping law leaves private conversations currently unprotected. The absence of legal protection will likely create an urgency for the legislature to craft a new policy, according to Yohnka.
“The legislature is beginning to grapple with what a replacement ought to look like,” Yohnka said. “I think that before the end of this legislative session in May, the legislature will pass a replacing statute.”
New legislation may restore Illinois’ unique two-party consent rule, but — if modeled after the recording laws of other states — would include a more narrow definition of “privacy” in conversations. Until such legislation is passed, Illinois citizens have nearly unrestricted freedom to record conversations that previously could have landed them in prison.