The Illinois Supreme Court struck down the state’s 51-year-old controversial eavesdropping law, ruling that it is unconstitutional to criminalize the act of recording public conversations.
The court ruled March 20 that the law’s requirement that all parties give their consent to be recorded, even if they are in public or simply a background voice, is impractical because technological advancements such as smart phones make it possible to record audio and video at any time. According to the ruling, the eavesdropping law was written so broadly that it criminalized things such as recording a debate on a college quad, a vocal argument on a street corner or even fans yelling at a sporting event.
“None of these examples implicate privacy interests, yet the statute makes it a felony to audio record each one,” according to the court ruling.
The Supreme Court ruled in favor of Annabel Melongo, who was arrested in May 2006 in violation of the act by recording three telephone conversations with a court reporter about the policy for correcting hearing transcripts and later posting them to her website, according to court documents. Melongo was held in the Cook County Jail for 20 months on a six-figure bail, a sentence typically given to violent or repeat offenders. She also faced felony charges for the unauthorized recordings, as reported March 31 by The Chronicle. According to the court ruling, Melongo was held in violation of her rights to free speech and due process protection.
The act has prevented private conversations from being unknowingly recorded and made public, but it restricts individuals from recording and publishing open conversations, said Sarah Marmor, an attorney and partner at Scharf Banks Marmor LLC.
“In this day and age, there is a difference between what you can do and what you should do,” Marmor said. “What you can, as a legal matter, do is probably record things that are public. You should be very careful about recording things that are private.”
As technology evolves and cellphones equipped with digital recorders become commonplace, the distinction between public and private begins to blur, Marmor said.
“[The act] certainly is from a time where we didn’t have the kinds of technology that we have today,” Marmor said. “It has been around … long before emails, Internet and smartphones.”
Illinois Rep. Elaine Nekritz (D–Northbrook) said she thinks the act is constitutional despite the court ruling because it assured privacy. However, Nekritz said she agrees that technological advancements have made the act too broad to enforce fairly.
Jacqueline Wernz, an attorney at Franczek Radelet, said many have expressed confusion about how to interpret the court’s decision since the act was overturned by the Supreme Court. Although there is no longer an eavesdropping mandate in place, Wernz said schools and
employers are not obligated to let people record conversations and will have to adjust their privacy policies in the absence of the eavesdropping law.
“[The court] said, ‘Now you need to amend the law to fit within the parameters of our decision,’ but in the meantime ... there isn’t any eavesdropping law,” Wernz said.
Now that the act has been overturned, legislators are tasked with drafting a new version. In the interim, Ed Yohnka, director of communication and public policy for the American Civil Liberties Union of Illinois, said he worries it could be difficult to protect citizens against being secretly recorded by the police or the government.
“It’s going to be important in the legislative process to ensure those privacies still remain even while we repair the part of the act the court found to be unconstitutional,” Yohnka said.
State legislators in Springfield, Ill., are in the process of drafting a more practical eavesdropping law that can be enforced in the 21st century, Yohnka said.
“Now we go through this process of really needing an eavesdropping act that recognizes the importance of the First Amendment right to gather information but at the same time also protects individual privacy,” Yohnka said.