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Sunday, May 26, 2024 | Back issues
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Illinois Eavesdropping Law Won’t Get Reprieve

(CN) - The Supreme Court refused to take up a dispute over a controversial eavesdropping law that makes it a felony in Illinois to record law enforcement officers while they are on duty.

The law, originally passed in 1961, criminalizes the nonconsensual recording of most oral communication without the consent of all parties. Photos, taking notes, and silent video recording of a conversation are permissible under the statute. Subsequent amendments carved out immunity for law-enforcement officers and for audio recordings related to news reporting, but enhanced the punishments for recording of police officers by a private citizen.

Both lawmakers and civil rights groups within the state have taken aim at the law. The American Civil Liberties filed suit, citing concerns that its members would face prosecution while carrying out the organization's "police accountability program."

Recording police is a long-standing monitoring mission for the ACLU, which claims that ability is vital to prevent abuses.

The program involves recording officers who are performing their duties in public places, with special attention given to recording political protests and demonstrations. The ACLU's pre-enforcement action sought to enjoin Illinois State's Attorney Anita Alvarez from enforcing the law against citizens who record police officers on duty.

U.S. District Judge Suzanne Conlon rejected the ACLU's challenge, calling the claim "an unprecedented expansion of the First Amendment," which she noted "does not protect the right to audio record."

But a divided panel of 7th Circuit reversed the ruling in May, saying, "the district court's decision turned on mistaken understandings about the relevant First Amendment doctrine."

Rejecting Conlon's determination that the ACLU lacked standing, the appellate panel wrote: "The Illinois eavesdropping statue restricts far more speech than necessary to protect legitimate privacy interests; as applied to the facts alleged here, it likely violates the First Amendment's free-speech and free-press guarantees."

Judge Diane Sykes penned the majority opinion.

"Unlike the federal wiretapping statute and the eavesdropping laws of most other states, the gravamen of the Illinois eavesdropping offense is not the secret interception or surreptitious recording of a private communication. Instead, the statute sweeps much more broadly, banning all audio recording of any oral communication absent consent of the parties regardless of whether the communication is or was intended to be private," she wrote.

The court issued a temporary injunction preventing enforcement against citizens who record police officers and returned the case to Judge Conlon for a more extensive ruling on the merits.

Alvarez petitioned the Supreme Court to intercede, but the justices denied her petition without comment, as is their custom, on Monday.

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