Eavesdropping Law Unconstitutional… For Now

Posted on: May 8th, 2014 by Harter Schottland

In the first quarter of this year the Supreme Court of the state of Illinois struck down a state law that made the audio recording made by any person, even in public, illegal unless their consent was obtained first. The law was one of the strictest of its kind in the nation and was often used to prevent people from recording government officials, including police officers.

The Illinois Supreme Court struck down the law as unconstitutional because it criminalizes a wide range of innocent behavior, including behavior that could not be considered private such as a loud argument on the street, a political debate on a college campus, fans at a sporting event and conversations that are long enough to happen to be heard by others even if not the intended focus of the recording. The Supreme Court held that none of these types of activities implicated privacy interests but under the law they would be a felony if audio recorded.

Prior to the striking down of the law, there was some movement to try and exclude the audio recording of police officers from the statute. However, now that the Supreme Court has held the entire law to be unconstitutional, people can record anyone, even police officers, without fear of state criminal charges for eavesdropping.

Unfortunately, it is not a license to record at will. Under some circumstances a person may still have to concern him or herself with federal wiretapping laws and the implication of privacy in the video recording or photographing of people in certain places, such as bathrooms and dressing rooms. Audio recordings can also sometimes trigger civil invasion of privacy complaints. Additionally, it is premature to rejoice in the striking down of the statute as we have yet to see what the Illinois legislature will do when it attempts to re-formulating the eavesdropping statute to withstand Supreme court scrutiny.

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