Late last year, Illinois' then-governor, Pat Quinn, passed a new eavesdropping law, Public Act 098-1142 (formerly S.B. 1342). The new law filled a void left by two Illinois Supreme Court decisions that struck down the old eavesdropping law as unconstitutional. People v. Clark, 2014 IL 115779 (Mar. 20, 2014); People v. Melongo, 2014 IL 114852 (Mar. 20, 2014). The state's highest court found that the old eavesdropping law violated the First Amendment by criminalizing the recording of public conversations. The new law, however, comes with issues of its own.
Illinois' new eavesdropping law makes it illegal to record surreptitiously any communication where one or more of the parties to the communication has a reasonable expectation of privacy. The statute is, not surprisingly, silent on what constitutes a "reasonable expectation of privacy." Though, if you're on the phone with someone, it seems pretty clear that you should get their permission before recording the conversation.
If you are a member of Illinois law enforcement, then the law provides you with more leeway. Among the exemptions outlined in the statute, law enforcement is permitted, under certain circumstances, to record communications to which they are a party. Further, rather than having to obtain a warrant from a judge before recording subjects of an investigation, in most cases, police officers may seek the permission of a state attorney. Recognizing the potential abuse of this provision, the legislature included a three year sunset provision. State attorneys must keep a written record of each request by law enforcement, including the subject of the investigation's name and physical description, or other information that shows that the request was for a qualified offense under the statute. Beginning March 1, 2015, each state attorney office must submit an annual report to the legislature disclosing the number of requests and number of approvals. After three years, the legislature will review these records and determinate whether the provision should remain law.
The new law also defines "eavesdropping device" to include "electronic communications." Is forwarding an email or photograph without the originator's permission a violation? The law silent; leaving the courts to wrestle with this issue, among a myriad of others.
Illinois' new eavesdropping law is sure to raise some interesting legal issues. Despite the lengthy text of the law, at its core it is vague – what constitutes a private communication? It is yet to be seen whether this statute will survive the scrutiny of the Illinois Supreme Court, but it will certainly be interesting to watch as these cases are sure to make their way there.