The Illinois Supreme Court struck down the law that criminalized recording of conversations without all parties' consent. What will replace it, and when?

Illinois is without an eavesdropping law.

In two opinions issued by the Illinois Supreme Court on March 20, the justices held that the law, which criminalized the recording of conversations without all parties' consent, was overly broad and unconstitutional. The ruling means the Illinois General Assembly will have to quickly craft a law that conforms with the court decision because right now, even surreptitious recording cannot be criminalized.

People v. Clark

In the key case decided by the justices, People v. Clark, 2014 IL 115776, the defendant had recorded a conversation with his ex-wife's lawyer and a conversation between himself, his ex-wife's lawyer, and a judge during a court call in Kane County Circuit Court. Clark was prosecuted under the eavesdropping law but challenged his conviction, arguing that the statute violated his First Amendment and substantive due process rights and was therefore unconstitutional.

The circuit court agreed and the Illinois Supreme Court upheld that ruling.

The law, 720 ILCS 5/14-(2)(a)(1)(A), states that a person commits eavesdropping when he "[k]nowingly and intentionally uses an eavesdropping device for the purpose of hearing or recording all or any part of any conversation or intercepts, retains, or transcribes electronic communications unless he does so (A) with the consent of all the parties to such conversation or electronic communication…."

In 1986, the Illinois Supreme Court struck down an earlier version of the law when it overturned the conviction of a defendant who recorded a conversation with a police officer after a road stop. The court made it clear in that case, People v. Beardsley, 115 Ill. 2d 47 (1986), that for illegal eavesdropping to occur the conversation must have been meant to be private or secret. The court narrowed the law to prohibit only the surreptitious recordings without consent.

But in 1994, state lawmakers amended the law to prohibit recording regardless of whether the parties intended the conversation to be private. The court said the legislature went too far, crafting an overly broad statute that would even render public discourse off limits for recording.

"Audio and audiovisual recordings are medias of expression commonly used for the preservation and dissemination of information and ideas and thus are included within the free speech and free press guarantees of the first and fourteenth amendments," said Chief Justice Garman in the unanimous opinion.

The justices noted that the statute was so broad as to criminalize a range of conduct that cannot be considered private. "For example, the statute prohibits recording (1) a loud argument on the street; (2) a political debate in a park; (3) the public interactions of police officers with citizens (if done by a member of the general public); and (4) any other conversation loud enough to be overheard by others whether in a private or public setting. None of these examples implicate privacy interests, yet the statute makes it a felony to audio record each one."

It is inconsistent in this high-tech era, the court noted, to allow someone to take written notes during a conversation but not to turn on a recording device in certain circumstances. "The person taking notes may misquote us or misrepresent what we said, but an audio recording is the best evidence of our words. Yet, the eavesdropping statute bars it. Understandably, many people do not want their voices broadcast to others or on the Internet to be heard around the world. But to a certain extent, this is beyond our control, given the ubiquity of devices like smart phones, with their video and audio recording capabilities and the ability to post such recordings instantly to the Internet." The statute burdens more speech than is necessary to meet any important governmental interest it might serve, the justices said.

A three-part law?

Until the state legislature crafts a new law, people are now free to tape whatever they'd like, whether the conversation is private or public. Chicago criminal defense lawyer Robert A. Loeb is among those observing that the General Assembly must quickly draft a new law that balances legitimate privacy interests with the First Amendment.

"Until the legislature passes a new law, people can tape their own conversations," Loeb said. "I think it's bad for privacy. I think, in the big picture, technology is moving 100 times faster than the law and we're losing privacy in so many ways." But he acknowledged that as a civil libertarian, he did not disagree with the court's ruling.

Madison County public defender John Rekowski put it this way: "I think the two big elephants in the room are the General Assembly's belief that there shouldn't be recording without knowledge but [on the other hand, that police] should be able to be recorded whether they know it or not. They are going to have to draft a law that allows the one but not the other, that accommodates both of those interests."

But in public venues, such as sporting events, school assemblies, and concerts, lawmakers would be hard pressed to try to charge someone with a crime because he or she happened to pick up other voices while recording a public event, Rekowski added. "Eavesdropping charges, at least in my experience, are generally brought as a vendetta," he said.

"I think you're going to see a three-part law. In a perfect world I think we are going to be able to record cops doing their public duties, we're not going to be able to record truly private conversations, and there will be some sort of waiver to protect a person in very public venues when [the person recording] picks up voices."

Jim Covington, director of legislative affairs for the ISBA, said he believes the legislature will act on this quickly, meeting with all the stakeholders - law enforcement officials, the American Civil Liberties Union (which filed an amicus brief on behalf of the defendant in the Clark case), privacy groups, and others. Covington noted that there are 22 exemptions to the law that was just struck down, so it will be a complicated process.

The Illinois Constitution contains a privacy clause, which creates a right that will have to be taken into consideration when lawmakers draft a new bill. Covington, noting that under federal law only one-party consent is required for recording conversations, said such a bill might conflict with the Illinois Constitution.

"We think there are certain conversations that should be considered private because the Illinois Constitution specifically mentions [privacy]," he said. "I have no idea where this is going to go. But until the legislature acts, maybe you should assume that anything you say could be recorded."