The embattled Illinois Eavesdropping Statute has long suffered from overbreadth, vaguemess, and other deficiencies.
Felony to Record Police Acting in Official Capacity Peforming Public Duties
Perhaps, the most infamous provision of the Illinois eavesdropping law, 720 ILCS 5/14-4, imposes a Class 1 felony penalty upon an individual who, in violating § 14-2 of the statute, records an oral conversation of a police officer or certain other public officials in the performance of their official duties. This provision and its explicit effect has long been criticized. In fact, the Illinois State Bar Association has proposed legislation, originating through its Intellectual Property Section Council, amending the Illinois Eavesdropping Statute to eliminate the very effect of § 14-4. The legislation has since been introduced into the Illinois legislature by Representative Elaine Nekritz as HB3944.
Previously, a judge in Crawford County, Illinois ruled the Illinois Eavesdropping Statute to be unconstitutional on its face because it lacked the requisite mental state causing it to be overbroad and vague. The ruling also concluded that an individual possesses a First Amendment right to gather information by recording public officials acting in their official capacity. Thus, the court held that the Illinois Eavesdropping Statute violates the First Amendment as well.
At the same time, the Seventh Circuit Court of Appeals is deliberating the constitutionality of this provision after hearing oral arguments in 2011 in ACLU v. Alvarez. With the Seventh Circuit, the outcome remains uncertain. As one of the panelists deciding the appeal, Circuit Judge Richard A. Posner appears to fear the unrestricted recording of law enforcement performing their official duties in stating "[i]f you permit the audio recordings, they'll be a lot more eavesdropping....There's going to be a lot of this snooping around by reporters and bloggers." Somewhat perplexingly, Posner later stated, "Yes, it's a bad thing. There is such a thing as privacy." From his comments, it appears that the Seventh Circuit will, in deciding whether the statute is unconstitutional, be balancing an individual's First Amendment right to record public officials acting in their official capacity and the privacy that Judge Posner apparently believes exists in public officials engaging in official conduct.
[Editor's Comment: The reasoning of the court in Crawford County seems more reasonable in concluding that public officials in performing their public duties cannot assert a right of privacy comparable to the private citizen.]
Although any decision could lead to an appeal to the United States Supreme Court, a decision by the Seventh Circuit upholding § 14-4 could give greater reason for the Supreme Court to hear the case. For, not too long ago, the First Circuit Court of Appeals held that the First Amendment provided and protected the right to record police in their official capacity in Glik v. Cunniffe, et al., No. 10-1764 (1st Cir. Aug. 26, 2011). Thus, should the Seventh Circuit uphold § 14-4 of the Illinois Eavesdropping Statute, there would - apart from the inherent constitutional issue - be a conflict among the Circuits. Given that the Supreme Court may be more inclined to hear an appeal where a conflict exists among the Circuits, this could lead to a potential appeal and deliberation before the United States Supreme Court on this issue.
In the interim, as stated above, Representative Elaine Nekritz introduced legislation (HB3944) seeking to amend the Illinois Eavesdropping Statute to eliminate the effect of § 14-4 by adding an exception to § 14-3 allowing individuals to record public officials engaged in their public duties performed publicly. The legislative history of HB3944 demonstrates that it has since acquired numerous co-sponsors, emerged favorably from committee, and has been set to be scheduled for its third reading.
The statute has also been challenged in another criminal proceeding pending in the Circuit Court of Cook County in State v. Melongo.
Proposed Civil Remedy for Electronic Eavesdropping
Since 2009, Charles Mudd of Mudd Law Offices has advocated amending the Illinois Eavesdropping Statute to provide a civil remedy for eavesdropping of electronic communications.
In the Criminal Code of 1961, Illinois criminalized eavesdropping (“Illinois Eavesdropping Statute”) and provided a civil remedy for violation of the criminal statute. At the time, the Illinois Eavesdropping Statute applied only to oral communications. In 2000, the Illinois General Assembly amended the Illinois Eavesdropping Statute to include eavesdropping of electronic communications within the scope of the criminalization provisions. However, the amendment did not modify the civil remedy section at 720 ILCS 5/14-6. As such, § 14-6 still only provides a civil remedy for eavesdropping of oral communications because it refers to “conversation” which is defined as being an “oral communication.”
Based on his analysis, Charles Mudd drafted legislation that he presented to the Illinois State Bar Association's Intellectual Property Section Council. The proposed legislation would amend § 14-6 by simply adding “and electronic communications” to provide a civil remedy for eavesdropping of conversations and electronic communications. The proposed legislation would then provide full effect to the original intent of the statute to provide a civil remedy for violations thereof.
Through his efforts, the Intellectual Property Section Council voted in favor of his legislation amending the Illinois Eavesdropping Statute. Subsequently, the Illinois State Bar Association (ISBA) voted to propose the legislation. Although introduced into the Illinois legislature by Illinois Senator John Millner as SB 2987 in 2010 and passed by the Senate, it failed to proceed past the second reading in the House. Re-introduced in the 97th General Assembly in 2011 a SB 1702, the legislation passed the Senate, made it through the second reading in the House, and was then was referred to the Rules Committee.
Exception for Conversations with Financial Institutions
Another proposal to amend the Illinois Eavesdropping Statute has focused on allowing consumers to record conversations with financial institutions that record such conversations.