Under the law, a person is guilty of eavesdropping when he or she “knowingly and intentionally uses an eavesdropping device for the purpose of hearing or recording all or any part of any conversation or intercepts, retains, or transcribes electronic communication unless he does so (A) with the consent of all of the parties to such conversation or electronic communication.” 720 ILCS 5/14 2(a)(1)(A).
Prior well-publicized cases have involved individuals recording their encounters with police. A jury acquitted one such defendant and a judge deemed the statute unconstitutional in another defendant’s case. In 2012, the Seventh Circuit Court of Appeals held the law unconstitutional.
Now, the Illinois State Supreme Court has agreed in both Kane and Cook County cases. In People v DeForest Clark, a Kane County defendant recorded conversations involving himself, his ex-wife’s attorney and a judge. The Clark court stated that the law was overbroad, and in a world of smart phones, went too far to protect an individual’s privacy in their communications.
In the Cook County case, the defendant recorded conversations with a court reporter regarding a court transcript’s accuracy. Defendant posted the conversations on her website. (See People v Melongo.) The court held that the eavesdropping statute substantially burdens more speech than necessary to serve the government’s legitimate interest in protecting privacy. In other words, enforcing the statute too often criminalizes otherwise innocent conduct.
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