Eavesdropping on Illinois
Maxwell Peerman Daniels
With the rise of technology enabling accessibility of audio-recording devices to everyone with smartphones it can be understood how our conversational privacy is needless to say; in danger. But where do we draw the line? Do we ban recording any and all conversations? Illinois came across this exact issue in the mid 1980’s, but their solution in the 1990’s was later found to be infringing on Illinois resident’s constitutional rights a decade later.
In this research paper, I will be following the historical progression of the Illinois’ state eavesdropping statute and its subsequent amendments. The latest amendment was struck down by the Supreme Court March 20, 2014 for being unconstitutional on the basis of being overly broad and had remained active since 1994. The Illinois Supreme Court found the past amendment to the statute,
“Criminalizes a wide range of innocent conduct and burdens substantially more speech than is necessary to serve a legitimate state interest in protecting conversational privacy.”(Garman, 2014)
The statute went as far as to making it a felony to audio record a loud argument on the street, a political debate in a park, the public interactions of police officers with citizens, and any other conversation loud enough to be overheard by others whether in a private or public setting according to an official report from the Illinois Supreme court (Garman, 2014).
Before we go any further we should first define what the definition of eavesdropping is. According to Merriam-Webster, the definition of eavesdrop is to listen secretly to what is said in private (Webster, 2015). Dependent on the state, each has their own determination of what deems consent that a conversation is private and what cannot be recorded. Due to the population size and excessive amount of audio recording devices in Illinois compared to Idaho, legislation specifically targets eavesdropping devices in Illinois, while legislation in Idaho regarding eavesdropping specifically targets the “interception and disclosure” of ”oral communications” according to Idaho Code § 18–6702(Idaho,1980). Each state has a law which can be interpreted differently dependent on the situation and vocabulary. It is up to our elected officials to interpret the law, and for us to raise the ethical questions in court when our rights have been abused.
Now we’ll take a look at the key court cases which impacted Illinois’ eavesdropping laws over the past 40 years so that you can understand why Illinois lawmakers felt the state deserved “one of the nation’s toughest eavesdropping laws”. After you sort through the facts you can decide for yourself whether the new legislation by Illinois’ General Assembly has been crafted to serve its people, or if it is still “narrowly tailored to serve a significant governmental interest”, according to Supreme Court Chief Justice Garman (Garman, 2014).
The first case that made headlines in Illinois calling for reform in the eavesdropping statute takes place in 1986. Based on research from Justia.com, On January 7, 1984 Robert Beardsley was pulled over for speeding and rather than choosing to hand over his identification to police officers he knowingly recorded the officers during their duty as he protested for his Maranda right to counsel (Justia, 1986). This patriot or outlaw depending where your beliefs sparked a debate on the eavesdropping statute in Illinois, as police officers and government officials felt the recording of their conversation interfered with the completion of their duties.
According to the Illinois Supreme Court official report of the People vs. Clark,
In People v. Beardsley, 115 Ill. 2d 47 (1986), the defendant was convicted of eavesdropping for recording a conversation with a police officer after he was stopped for speeding. In this court, the defendant argued that he was improperly convicted because the conversation he recorded was not private or secret, as he was a party to it. He argued that under the common meaning of “eavesdropping,” the conversation must have been intended to be private for the statute to apply (Garman, 2014).
The Supreme Court further explained and agreed with the defendant that since Robert Beardsley was a member of the conversation that it could not be deemed private by the police officer. It wasn’t until 1994 that the State of Illinois created an amendment to the statute defining conversation, due to a similar eavesdropping case brought up in 1994. In the People vs. Herrington the defendant participated in a conversation with the victim of eavesdropping, which was recorded by the police, according to the official report from the Supreme Court (Garman, 2014). A trial court suppressed the recorded evidence, although the Supreme Court reversed the decision on the basis that “there could be no expectation of privacy where the person recording the conversation is a party to that conversation.” Later that year the Illinois General Assembly picked apart the statute, attempting to permanently close the loophole Robert Beardsley used before, and now Herrington. In order to do this the state had to craft legislation which would define what constituted a conversation.
On December 15, 1994 an amendment to the eavesdropping statute was created defining a “conversation”, and therefore stated what constituted consent for privacy for said conversation according to the official report from the Supreme Court. The new amendment required all parties of a conversation to give consent towards audio-recording and criminalized behavior of those who infringed on privacy, but to what great lengths. Supreme Court Chief Justice Garman goes on further to explain that the amendment made clear that, “no recording could be made absent consent from all parties regardless of any lack of expectation of privacy (Garman, 2014).” Due to this new amendment anyone could be charged for recording any conversation. For normal citizens this is a major breach of their freedom of expression, but for reporters this hurt their livelihood. Although Illinois does have shield laws, there are no specific rights protecting reporters for newsgathering. Much like Illinois, the Maryland Legislature for example, does not allow reporters to have recording devices when attending sessions according to The Law of Journalism and Mass Communication (Trager, 2010).
For a decade Illinois residents were affected by the 1994 eavesdropping amendment. The amendment allowed the police department of Chicago to operate under a veil, free from accountability of their actions. Residents of Chicago have become accustomed to police officers scare tactics but have also unknowingly become accustomed to their constitutional rights being breached and treated as criminals. The Chicago Reader reports one resident who stood up for his rights never got to see how his sacrifice helped change the Illinois statute as he passed away in 2012, while his case was still being litigated.
“Chris Drew was charged with a felony back in 2009 for recording his arrest while attempting to challenge a different law — the one that prevents artists from selling their work on the street. Drew had a tape recorder in his pocket when Chicago police took him into custody for peddling art downtown without the proper permit, a misdemeanor charge that was dropped as prosecutors pursued the felony conviction (Isaacs, 2014).”
It wasn’t until 2014 that a new eavesdropping case in Illinois made its way to the Supreme Court for an appeal. According to the Illinois Supreme Court official report DeForest Clark of Kane County was charged with two felony counts of eavesdropping for recording a conversation with his lawyer, as well as a conversation between the presiding judge on duty and another victim without their consent. Clark saw the eavesdropping statute he was charged with unfit and according to the official report filed a motion for dismissal on the grounds that the eavesdropping statute violates his substantive due process and his rights under the First Amendment of the Constitution (Garman, 2014).
The Illinois Supreme Court official report details the basis for why the Supreme Court Justices struck down the 1994 amendment of the eavesdropping statute as unconstitutional and how the statute breached resident’s rights of the First Amendment. Chief Justice Garman who delivered the verdict with opinion explains that the state made it overly broad to criminalize behavior. Adding that (Garman, 2014),
“Audio and audiovisual recordings are medias of expression commonly used for the preservation and dissemination of information and ideas and thus are included within the free speech and free press guarantees of the first and fourteenth amendments.”
And going further to attack those who created the legislation by saying that the
“Statute was narrowly tailored to serve a significant governmental interest.”
For almost a year the Illinois General Assembly spent crafting a new amendment waiting for it to be passed by Governor Quinn. With that being said, the same state which criminalized recording for a decade went nearly a year without any statute at all for eavesdropping. According to the Chicago Tribune on December 30, 2014 Governor Quinn passed a new amendment to the statute which explains what kind of conversations are deemed private. The amendment states a conversation with “reasonable expectation” of privacy from two or more parties involved is deemed private. Also the amendment goes onto allow the recording of police officers during the course of their duties, although no legislation has made clear the limitations of police officers body cameras imposed in reaction to the riots in Ferguson, Missouri (Garcia, 2014).
Obviously from this report you can see there is no ending or ultimate solution. There are no problems until they are brought up and the laws can then evolve with the current culture. So with that much being said now the question for all of us is,
“Does the new statute “reasonably” protect the privacy of the people or the state?”
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Eavesdropping on Illinois by Maxwell Peerman Daniels is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License.
Refrences
Garcia, M. (2014, December 30). Quinn signs new Illinois eavesdropping rules into law. Retrieved February 25, 2015, from http://www.chicagotribune.com/news/ct-quinn-signs-illinois-eavesdropping-law-met-1231-20141230-story.html
Isaacs, D. (2015, January 20). What’s safe under Illinois’s new eavesdropping law? Retrieved February 25, 2015, from http://www.chicagoreader.com/chicago/illinois-eavesdropping-law-warrantless-surveillance-aclu/Content?oid=16244806
Garman, Supreme Court Chief Justice. “Illinois Supreme Court Official Report.” (2014). Web. 22 Mar. 2015. <http://www.state.il.us/court/opinions/SupremeCourt/2014/115776.pdf>.
(n.d.). Retrieved March 22, 2015, from http://www.merriam-webster.com/dictionary/eavesdrop
Idaho Statutes. (1980, January 1). Retrieved March 22, 2015.
Trager, R., & Russomanno, J. (2010). The law of journalism and mass communication(2nd ed., p. 345). Washington, D.C.: CQ Press.
People v. Beardsley. (1986, January 1). Retrieved March 22, 2015, from http://law.justia.com/cases/illinois/supreme-court/1986/63079-7.html
