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Conversational Privacy – It’s A Thing in Illinois

February 4, 2015

Illinois’ former eavesdropping law was unconstitutional because it was too broad to protect the fundamental interest in conversational privacy. When the former law was held unconstitutional, many wondered how the General Assembly would respond. By enacting this new law on December 30, 2014, Illinois made clear that it was going to stay the course and protect its citizens’ private conversation.

The cornerstone of Illinois’ eavesdropping law is the policy that the people of Illinois should not fear that what they believe to be private conversations are being recorded. That is, private conversations should remain so unless everyone agrees otherwise. A policy favoring conversational privacy is an important difference between Illinois and other states. Many other states allow a party to a conversation to unilaterally record a “private” conversation without the consent of the other parties.

Nevertheless, the “old” law was flawed because of its overwhelming breadth. As the Illinois Supreme Court pointed out in People v. Clark, the old statute protected any oral communication between two people “regardless of whether one or more of the parties intended that the conversation be private under circumstances justifying that expectation.” People v. Clark, 2104 IL 115776. Nearly every communication between two or more people was protected. As the Court pointed out, recording loud arguments on city streets, public debates, and public interactions of police officers with citizens constituted eavesdropping under the old statute. Id. at ¶ 21. Criminalizing the recording of “public conversations” did not serve the state’s interest in protecting conversations that at least one person believed were private in circumstances justifying that belief.

The new and improved statute remedies these defects by redefining the elements of eavesdropping and adopting definitions that explicitly protect private conversations. Under the amended law, a person commits eavesdropping by knowingly or intentionally using an “eavesdropping device, in a surreptitious manner, for the purpose of overhearing, transmitting, or recording any part of a private conversation” unless all of the participants consent. 720 ILCS 5/14-2 (emphasis added). “Private conversation,” is defined to mean any oral communications between two or more people when at least one party “intended the communication to be of a private nature under circumstances reasonably justifying that expectation.”  720 ILCS 5/14-1.  By explicitly stating that the statute applies only to “private conversations,” the legislature clarified that recording loud arguments on the street, public debates and other types of “public conversations” does not constitute eavesdropping. Eavesdropping occurs only where there is reasonable expectation of privacy.

Curiously, when the amended eavesdropping law was enacted, it garnered significant media coverage. Few commentators praised the law’s protections of private conversations. Most attacked the law, claiming Illinois had made it a felony for Illinoisans to record their interactions with police officers. That makes a great headline –  and it may increase website traffic –  but such a blanket statement is not completely accurate.

True, the amended law does make it a felony to eavesdrop on communications of law enforcement officers while in performance of their official duties absent a court order or authorization under the eavesdropping law.  720 ILCS 5/14-4. Eavesdropping, however, only occurs if the conversation occurred under circumstances that reasonably justified the expectation of privacy. The eavesdropping law does not protect conversations for which there is no reasonably justified expectation of privacy. As such, recording interactions between law enforcement officers, including judges and attorneys, and citizens in a public space likely is not eavesdropping.

The parameters of the eavesdropping law will no doubt be tested. Importantly, however, the amendments to the law emphasize that private conversations should be kept private.  By sharpening the focus of the law, the General Assembly constructed a statute that is only as broad as it needs to be to offer the protections it desires.