CHICAGO (CN) - Technological improvements that make covert recordings easier than ever require updating the eavesdropping law in Illinois, not trashing it, a state's attorney told the Illinois Supreme Court today.
The court is considering the constitutionality of the law after a woman prosecuted under it was incarcerated for over 18 months before her trial ended with a hung jury.
Annabel Melongo was once an employee of the Save-A-Life Foundation, an Illinois charity that has been accused of dishonesty or financial impropriety. After secretly recording her phone conversations with a Cook County court reporter and posting those tapes on a personal website, she was charged in 2010 with violating the Illinois Eavesdropping Act, a law that requires a person to obtain the consent of anyone whose conversation he records.
The trial judge ultimately found for Melongo when she challenged the eavesdropping statute, leading the Illinois Supreme Court to hold oral arguments today on the state's appeal.
"I'm concerned with the overbreadth of the statute," Justice Robert Thomas said.
Confirming that it could apply to recording a fight at a children's baseball game, he asked: "Couldn't we go to YouTube today and find many other examples? Are we just relying on prosecutorial discretion here?"
State's Attorney Alan Spellberg noted that "the Legislature sought to ensure conversational privacy by requiring the parties' consent," which Melongo did not obtain.
In response to the court's overbreadth concerns, Spellberg admitted that the statute "could need an update in light of technology" that makes it easier to record people, but insisted that "that is a policy question for the Legislature. Requiring consent is the surest way to protect privacy."
Defense attorney Gabriel Plotkin quickly noted in response that "the statute on its face says that privacy is irrelevant. A person is a criminal eavesdropper even if she records a conversation that all participants intend to be public."
Noting that Melongo can facially challenge the statute even if it does not apply to her, Plotkin emphasized that "nothing shows that she acted with intent to invade anyone's privacy."
"We all have this instinct that a phone call is private," Plotkin added. "But public officials acting in their official capacity don't have the same right to privacy, and this was calling an official about public duties."
One Melongo supporter in the courtroom met this remark with an audible "Amen!"
Insisting that the Legislature should clarify the statute, Plotkin claimed that "consent is a horrible substitute for a definition of privacy. For one thing, it gives government officials and public actors unilateral and unfettered right to deny the press or citizens the right to record, gather information, disseminate information about the government."
Plotkin also noted "that consent is not always easy to get," illustrating this point by describing how a high school student might have trouble getting consent before recording a PTO meeting about banning books.
Requiring consent for recording public speech is "unreasonable," the attorney added.
The parties repeatedly locked horns over the Illinois Supreme Court's recent finding that the eavesdropping statute is unconstitutional as applied to recording police encounters.
"Public officials when performing their official duties have no right of privacy that outweighs basic First Amendment rights," Plotkin argued.
The court reminded Spellberg of this claim during the state's reply.
"I will honestly admit that," Spellberg said. "But these past cases involved the tort of invasion of privacy. Yes, the court reporter was engaging in her role as an official, but she still had the right to decide what to say and how to say it."
The ACLU of Illinois came down in an amicus brief squarely on the side of Melongo, who filed her brief with the high court on Dec. 6.
"It is axiomatic that conversational privacy is not advanced by restricting the recording of conversations that are not private," the ACLU's brief states.
It added that "few courts have squarely addressed the constitutional implications" of the "delicate balancing of free speech and privacy rights."
"Thus, the Eavesdropping Statute's means do not fit its ends," the ACLU continued. "It unconstitutionally infringes Ms. Melongo's right to receive, gather, and publicize non-private information, obtained from government officials in the course of their duties which the First Amendment protects."
An opening and reply brief are also available from Illinois. Melongo meanwhile is also suing the state in federal court for violations of her civil rights.
Read the Top 8
Sign up for the Top 8, a roundup of the day's top stories delivered directly to your inbox Monday through Friday.