You were a passenger in a car that the police pulled over. The officer seemed to be giving the driver, your friend, a hard time. You thought the officer was trying to strong-arm your friend, and with visions of Rodney King in your head, you turned on your I-phone to record the encounter.
Your friend was charged with a drug-related misdemeanor. But to your surprise, you are the one charged with a felony. Where did you go wrong? What can you do?
Illinois has one of the strictest eavesdropping laws in the country. The law is so strict that the American Civil Liberties Union challenged its constitutionality. The Chicago Sun Times wrote “The law seems deliberately designed to shield police from public scrutiny.”
Under the law any recording of a conversation or electronic communication without all parties’ consent is a crime with some exceptions. But if you recorded a police officer, prosecutor, attorney general or judge, the charges get kicked up a notch.
Illinois law defines eavesdropping as knowingly and intentionally using an eavesdropping device to hear or record a conversation even if the conversation was in public, unless you have everyone’s consent. Even if you direct someone else to eavesdrop for you, or you knowingly obtain a benefit from the eavesdropping, you can be charged with a felony.
If you are law enforcement, there are many exceptions to the rule so that an officer may record you. But if you are a citizen, you could be in a world of trouble. Eavesdropping on regular citizens is a Class 4 felony, punishable by up 1 to 3 years in prison. Subsequent offenses are Class 3 felonies, punishable by 2 to 5 years in prison. However, eavesdropping on law enforcement in the course of their official duties is a Class 1 Felony punishable by 4 to 15 years.
While these charges are not often brought, two high profile Illinois cases have exposed the harsh consequences of the law. Tiawanda Moore was charged after recording police who she believed were sexually harassing her. Fortunately, she was acquitted by a jury and is now suing the City of Chicago. Christopher Drew recorded his arrest for selling art without a permit and was facing up to 15 years in jail. Both Moore and Drew spent time in jail after their arrest. (See Illinois Eavesdropping Act: Tiawanda Moore Sues City and Eavesdropping Laws.)
In a recent development, Drew's charges were dropped after a Cook County Circuit Court judge ruled the eavesdropping law unconstitutional, saying that it was too broad and could punish innocent conduct such as taping a child's soccer game. (See Eavesdropping Law Unconstitutional). The Judge's ruling is not enough, however, to invalidate the law. The ACLU has appealed the law's validity and a ruling from the 7th U.S. Circuit Court of Appeals is expected. For now, however, the law remains on the books, and you are best advised to steer clear.
UPDATE: The 7th U.S. Circuit Court of Appeals agreed with the ACLU that the law was unconstitutional and overbroad. On November 26, 2012, the U.S. Supreme Court refused to hear the case, which leaves the 7th Circuit's ruling in place.
If you are charged with eavesdropping you should contact an experienced criminal law attorney immediately. Do not discuss your case with anyone. Any statements you make could jeopardize your defense. An experienced attorney can look for weaknesses in the state’s case. Did the officer have probable cause to stop you? Did you intend to eavesdrop? Did you have consent? The law itself has some exceptions, such as if you record someone because you believe they are about to commit a crime. But even if the state has crystal clear evidence against you, an attorney who is knowledgeable about the courthouse may be able to obtain a better plea agreement than you can on your own.
If you have questions about this or another related criminal or traffic matter, please contact Matt Keenan at 847-568-0160 or email firstname.lastname@example.org.
(Besides Skokie, Matt Keenan also serves the communities of Arlington Heights, Chicago, Deerfield, Des Plaines, Evanston, Glenview, Morton Grove, Mount Prospect, Niles, Northbrook, Park Ridge, Rolling Meadows, Wilmette and Winnetka.)