Posted April 16, 2014 2:30 PM
Updated April 17, 2014 9:15 AM

This call may be recorded

Elaine Nekritz
By Andrew Maloney
Law Bulletin staff writer

SPRINGFIELD — You can pick up the phone right now, call somebody, record the conversation without permission and not violate any state law.

That’s the result of a pair of Illinois Supreme Court rulings last month striking down the state’s eavesdropping law as being overly broad.

Now, one lawmaker is scrambling to find a solution.

“We cannot let this stand, because right now, you can record anybody, any time with or without (their) knowledge and use it for whatever purpose — and there’s nothing to control that,” said Rep. Elaine Nekritz, a Northbrook Democrat. “I think that’s a situation we really need to fix.”

A month ago, Illinois’ eavesdropping law made it a crime to record a conversation without permission from everyone involved.

Today, secret recordings that were once considered Class 1 felonies are now, technically, fair game.

One or more parties could record a phone call between friends, a dinnertime discussion or a sidewalk encounter without facing legal ramifications.

The legal landscape without an eavesdropping law, at least in theory, looks much different than it did when Illinois’ was intact and considered one of the toughest, most controversial in the country.

Ideally, Nekritz said, she’d like to have a new eavesdropping statute proposed before the end of the General Assembly’s spring session on May 31. But with lawmakers focusing more on the state’s finances than criminal law, she’s not confident a bill will advance.

She wants to keep one of the primary provisions in the old law — that all parties in a conversation give their consent before any recording is made — and add in exceptions for conversations that cannot reasonably be deemed to be private.

In one of its opinions in March, the Illinois Supreme Court gave some guidance as to what non-private conversations would be.

“[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,” Chief Justice Rita B. Garman wrote in People v. Melongo.

“None of these examples implicate privacy interests, yet the statute makes it a felony to audio record each one.”

The state’s eavesdropping law had been the subject of controversy for years. The decades-old rule clashed with modern technology — it banned audio but not videorecording, when smartphones and other devices collect both at the same time.

Illinois residents had been charged with violating the law in a variety of circumstances, including for recording police making an arrest in a public place, and both federal and state trial courts had declared the law unconstitutional on a limited basis.

Nekritz pushed lawmakers to change the law two years ago, but her efforts fell short after opposition from police officers.

It wasn’t until this year, though, that the Supreme Court was able to definitively weigh in on the law in a pair of cases.

In one, a Kane County man was arrested for recording proceedings in a courtroom and a conversation with the opposing attorney in the hallway. In the other, a woman recorded phone conversations with a court clerk and posted it on her website.

Unlike in 2012, when the 7th U.S. Circuit Court of Appeals struck down the state’s ban on carrying guns in public but gave lawmakers a timetable to write a new statute before the old one went off the books, the state high court didn’t leave the current eavesdropping law in place. Instead, it was declared unconstitutional immediately.

Thus, Nekritz’s push to pass a new law surfaced. The two-party consent rule she wants to keep in place, however, is at odds with what members of the law enforcement community are hoping for.

Prosecutors favor a one-party consent rule in which only one person participating in the conversation decides to record.

“If a law enforcement officer or an agent of law enforcement — so that could be a witness — is a party to a conversation, he or she could record that conversation,” said Kane County State’s Attorney Joseph H. McMahon, who prosecuted one of the high court cases at the trial court level.

“That’s different than if two private citizens are having that conversation, and a law enforcement officer is recording that conversation … in that latter scenario, I think there ought to be judicial approval.”

Gabriel Bankier Plotkin, a partner at Miller, Shakman & Beem LLP who represented Annabel Melongo in the Supreme Court case, said he would favor the all-party consent rule even though it was part of the statute he argued against.

“As someone who values personal privacy, I think that all-party consent statutes make sense,” Plotkin said.

“The problem with the statute that was just struck down was that it didn’t carve out around private conversations — it made it a crime to record public conversations without consent.”

Law Bulletin correspondent Dave Gong contributed to this report.


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