Applying Illinois’ eavesdropping law to government practice

On February 16, 2018, 13-year-old Paul Boron decided to record his interaction with school officials when he was called to the principal’s office over missing detention. The Kankakee County state’s attorney charged Boron with a Class 4 felony.

Illinois’ current eavesdropping law makes it a crime to record a “private conversation” without the consent of all parties, with some exceptions.¹

History of the Law

Illinois’ original eavesdropping law was enacted in 1961.² The two-party consent requirement was added in 1976.³ In 1986, the Illinois Supreme Court took a rather narrow approach to the eavesdropping statute, making audio recordings illegal only if the circumstances entitled the parties to believe that the conversation was private and could not be heard by others who were acting in a lawful manner.⁴

In 1994, the Illinois General Assembly overrode the prior case law by amending the statute to apply to “any oral communication between two or more persons regardless of whether one or more of the parties intended their communication to be of a private nature under circumstances justifying that expectation.”⁵

The law was struck down in March of 2014 by the Illinois Supreme Court on First Amendment grounds.⁶ The previous iteration of the law “deem[ed] all conversations to be private and, thus, not subject to recording absent consent, even if the parties have no expectation of privacy.”⁷ The court found that the statute burdened substantially more speech than was necessary to serve a legitimate State interest in conversational privacy, and therefore was constitutionally overbroad.⁸

And so, during lame duck session in December of 2014, the new eavesdropping law was passed and signed by Governor Quinn.⁹ The new law changed the definition of “conversation” to include communications where one or more parties is reasonably justified in expecting the conversation to be private. This new “reasonable expectation” standard is difficult to apply, as we will see.

What Is a Private Conversation?

What constitutes a “private conversation” is unclear. Sec. 14-1(d) defines “private conversation” as “any oral communication between 2 or more persons, whether in person or transmitted between the parties by wire or other means, when one or more of the parties intended the communication to be of a private nature under circumstances reasonably justifying that expectation. A reasonable expectation shall include any expectation recognized by law, including, but not limited to, an expectation derived from a privilege, immunity, or right established by common law, Supreme Court rule, or the Illinois or United States Constitution.”

In Boron’s case, at Manteno Middle School, the recorded conversation took place in what is described as the reception area of the secretary’s office, with the door open to the hallway.¹⁰ Would any of the parties have had a “reasonable expectation” of privacy in this setting? Does a government employee, performing their government job, even have an expectation of privacy?

In Senate debate, Senator Kwame Raoul was asked to explain the “reasonable expectation” language in the bill.¹¹ Senator Raoul offered, as an example, that the First Amendment contains the right to petition the government, and that the reasonable expectation language protects those conversations in which individuals are exercising their right to petition their elected officials.¹² He went on to give examples of conversations with legislators involved in legislative activity and attorney-client communications.¹³ The principal wasn’t exercising any such right in the Manteno case.
 

When Are You Allowed to Record?  

So just when can you record someone? The threshold questions are whether the conversation is private, and whether the recording is done secretly. The law allows recording if the conversation is not private, that is, there is no reasonable expectation of privacy as defined above. Also, there is no violation unless the recording is “surreptitious,” defined as “obtained or made by stealth or deception, or executed through secrecy or concealment.”¹⁴

Recordings for various investigatory purposes, such as wiretaps, are exempted, of course; however, some other notable exemptions related to government employees are the police interaction, open meeting, and fear-of-crime exemptions.

The law was amended in 2016 to allow citizens to record police interactions.¹⁵ This amendment cemented the right enunciated in the seventh circuit case of ACLU v. Alvarez from 2012.¹⁶ The question presented in this case was whether a First Amendment right to film police officers performing official duties in public exists.¹⁷ The court found that there is no government interest in protecting conversational privacy when police officers are performing their duties in public places and engaging in public communications audible to persons who witness the events.¹⁸ The broader implication of this decision is how it might apply to other government employees, such as teachers¹⁹ or judges.²⁰

In 2010, Michael Allison was charged with a felony for recording his own court hearing, which he did since he was not entitled to a court reporter for a misdemeanor zoning violation. “You violated my right to privacy,” Crawford County Circuit Judge Kimbara Harrell told him in open court.²¹ On the eavesdropping charge, the court found that Mr. Allison had a First Amendment right to record public officials performing their public duties (which, in this case, included not only the judge, but police, circuit clerk employees, and city attorney employees) and that the eavesdropping statute unconstitutionally prohibited recording without the public officials’ consent. “A statute intended to prevent unwarranted intrusions into a citizen’s privacy cannot be used as a shield for public officials who cannot assert a comparable right of privacy in their public duties.”²²
The law also allows recording meetings required to be open under the Open Meetings Act.²³ The Open Meetings Act allows anyone to record a meeting required to be open by the Act, subject to reasonable rules, except in the case of a witness who refuses to testify if recorded.²⁴ How, then, might the law apply to closed sessions? Although the Open Meetings Act requires a closed meeting to be recorded, someone making his or her own recording without the others’ consent would violate the law.²⁵

There is also an exemption allowing surreptitious recording if a party has “reasonable suspicion that another party to the conversation is committing, is about to commit, or has committed a criminal offense against the person or a member of his or her immediate household, and there is reason to believe that evidence of the criminal offense may be obtained by the recording.”²⁶ This exemption “requires (1) a subjective suspicion that criminal activity is afoot, and (2) that the suspicion be objectively reasonable.”²⁷ It is this exemption the defendant in People v. Melongo asserted.²⁸ Essentially, Melongo noticed a discrepancy in the court transcript in her computer tampering case. When she could not get the court reporter to correct the transcript, she recorded three conversations with a supervisor at the Cook County Court Reporter’s Office.²⁹ At trial, she attempted to argue that the court reporters were part of a criminal conspiracy; however, the court did not address the applicability of the exemption, instead ruling on First Amendment grounds.³⁰

Takeaways

It’s unclear why Mr. Boron decided to record his conversation with school officials. Could he have had a reasonable suspicion a crime was about to occur? Certainly there have been several recent incidents at schools where students were mistreated or assaulted by school staff.³¹ Was the school justified in having Mr. Boron arrested for recording a government employee performing his government job in a public place? Could the law be expanded beyond the police to include other government officials acting in public? In House debate of the eavesdropping bill, Representative Elaine Nekritz stated that the law would no longer make it a crime for a civilian to record a government employee doing their government job.³² After all, “[g]athering information about government officials in a form that can readily be disseminated to others serves a cardinal First Amendment interest in protecting and promoting ‘the free discussion of governmental affairs.’”³³

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The author is senior counsel and ethics officer for the Illinois Department of Central Management Services..