This was big news. The Eavesdropping statue had come under criticism for being used to target citizens who tried to expose corruption and incompetency in law enforcement and judicial officials, and I believe the Court's decision to invalidate the law was both wise and sound. But I believe the essence of what the Eavesdropping law in Illinois was meant to protect might be lost in all the hoopla over its application to the unauthorized recording of police or governmental activity.
In a situation like I just described, the conclusion that all you need is one party's consent to record the conversation seems to run contrary to the broad interpretation the Courts were giving to Beardsley. Yet, in People v. Herrington, 163 Ill. 2d 507 (1994), the Court took Beardsley a step further, and clarified that no expectation of privacy existed if one of the parties to the conversation was the recording party, allowing any person to secretly record a conversation as long as they were a participant.
Howls of protest followed from those who felt the Eavesdropping statute had been made a nullity. In the wake of these two decisions, the Illinois General Assembly amended and strengthened the statute by making it applicable to any oral communication “regardless of whether one or more of the parties intended their communication to be of a private nature under circumstances justifying that expectation.” This amendment clearly sought to overrule the Illinois Supreme Court decisions that effectively narrowed the statute. Now, it was clear that all parties needed to give consent before any recording could take place.
In addition, another amendment to the Eavesdropping statute attempted to modernize the offense, adding "electronic communication" to the scope of the law. While this eliminated the audio/video anachronism, the amendment was only applied to the criminal violations of the act. Thus, there was no civil liability for a video recording or snooping in someone's e-mail.
In the latest cases, the Court obviously had problems with the application of the law. The Court determined that the statute was vague, too restrictive, and "makes innocent conduct subject to prosecution." The court went was also critical of the statute not requiring any "culpable mental state: (meaning you didn't have to intend to violate the law) and that it violated substantive due process under both the United States and Illinois constitutions.
I believe the court made the right decision in striking down the law. Clearly, the application of the law “burdens substantially more speech than is necessary to serve a legitimate interest in protecting conversational privacy.” The Court noted that “The statute criminalizes the recording of conversations that cannot be deemed private: a loud argument on the street, a political debate on a college quad, yelling fans at an athletic event, or any conversation loud enough that the speakers should expect to be heard by others. None of these examples implicate privacy interests, yet the statute makes it a felony to record each one. Judged in terms of the legislative purpose of protecting conversational privacy, the statute’s scope is simply too broad.
I also believe the history of the use of the statute by prosecutors to inhibit the use of recordings to investigate police misconduct or judicial/governmental incompetence -- and nothing else -- also indicates that conversational privacy really isn't at the heart of its enforcement. And the punishment doesn't fit the crime. The defendant in the Melongo case spent over a year in prison for recording and publishing on the internet three telephone conversations with a county court official. The prosecution made no consideration for whether there was an actual violation of privacy, or if confidential information was disclosed. Just the fact the recording had been made was enough to subject the defendant to conviction. Perhaps the Melongo defendant should have been punished for violating the law -- but this is where the concept of a civil remedy or a requirement for a culpable mental state/intent needs to be considered. Then again, we are talking about a public official -- where the expectation of privacy is certainly different than the case I cited earlier, between a private businessman and his customer.
Clearly, the Illinois Eavesdropping law was a mess in the way it was written, and even a bigger mess in enforcement.
But I offer a word of caution. I believe the analysis of the Beardsley case was on the right track.
I feel the need to continue the protection of conversational privacy by requiring all parties to a conversation need to consent to the recording. But if the language of a replacement statute was clearer regarding some of these problem areas, the statute would be enforceable and fair.
For example, the statute should have a requirement of "reasonable expectation of privacy." This would take away liability for recording my son's little league game, or the speech at the political rally. It would also make a closer call for things like my client, the commodities trader. It is arguable that I do have a reasonable expectation of privacy in a telephone conversation with a single person, or in an e-mail exchange with that person. The same might even be true in a situation involving family situations -- divorce cases, for example. Should a divorcing spouse be allowed to surreptitiously record telephone conversations, or secretly videotape an in-home confrontation, and use the recordings against the other in court?
I think specifically exempting public officials, except in instances where there would be an obviously reasonable expectation of privacy, would be proper. We shouldn't let the police, court officials, or public transit officials off the hook when illegal behavior is caught on video, and use a law that was meant as a shield to protect against privacy intrusion and turn it into a sword to criminalize non-criminal conduct and put people in jail for what amounts to at best a minor civil violation.
In the end, its the civil remedy that needs more emphasis. Back in the early 1990s, when I was defending the commodities trader case, I went to the State's Attorney's office to see if there was a chance of bringing criminal charges for violating the Act. They laughed. Not to mock me, but to simply say that they had a lot better things to do with their resources. Besides, what I wanted was to exclude the recordings from evidence, not put the other party in jail. An emphasis on civil remedies, with a wide panoply of choices, would make the Eavesdropping prohibitions more useful, and yield fair results. For example, the prohibition of using the recordings against the non-consenting party may be enough. The requirement that the recordings be destroyed may be enough. The requirement that publication of the recordings cease may be enough. Sending the Merengo defendant to jail for over a year for publishing three telephone conversations with a court official, where we don't even know if the conversations really portrayed that official in a bad light or went beyond the auspices of her official duties, just seems wrong. A lesser penalty, arising in civil law, would have been much more appropriate.
While we all might applaud the death of the Illinois Eavesdropping Act, for all its faults, I do fear for the void it leaves. We need a re-write of the statute designed to truly protect private communications. It's certainly doable. And I hope it happens soon.