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Law Pulse by Helen W. Gunnarsson (Reprinted from the Illinois Bar Journal - Dec. 2001) Does Illinois' eavesdropping statute make felons of us all?
ISBA member Scott Ealy, a sole practitioner in Effingham, gets passionate when you ask him about Illinois' eavesdropping statute, found at 720 ILCS 5/14-1 et seq. "The problem is that it criminalizes a wide range of everyday, ordinary behavior by the average citizen."
Ealy enthusiastically offers examples of innocent behavior that, he contends, make nearly all of us chronic criminal offenders. "You're a parent recording your child's baseball game. The umpire calls your child “out” without knowing you're videotaping the event - with sound. You've just committed a felony." Why? Ealy explains that the statute defines "conversation" as "any oral communication between 2 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." 720 ILCS 5/14-1(d).
The eavesdropping offense, in turn, is defined at 720 ILCS 5/14-2 as "[k]nowingly and intentionally us[ing] an eavesdropping device [which, under the statute, would include tape recorders] for the purpose of hearing or recording all or any part of any conversation . . . unless [the actor] does so (A) with the consent of all of the parties to such conversation." 720 ILCS 5/14-4 makes the first offense under the statute a Class 4 felony. Subsequent offenses are Class 3 felonies; unless one of the parties to the conversation is a law enforcement officer, state's attorney or assistant, attorney general or assistant, or a judge, in which case it's a Class 1 felony.
Under the same provisions, Ealy contends that videotaping a wedding ceremony would be a felony, particularly if one or more of the guests shouted at the videographer, "Hey! Get that thing away from me! You’re not recording me!"
Ealy said that the statutory language "regardless of whether one or more of the parties intended their communication to be...private" is a big part of the problem. PA 88-677, which took effect at the end of 1994, added that language to the definition of "conversation." So even when people are talking and clearly not intending for their communications to be private; and even when any privacy intention obviously would be unreasonable; the conversation is likely covered under the statute unless it falls within the specific exemptions found at 720 ILCS 5/14-3.
Felonious lawyers?
Ealy said that much common conduct in the legal profession is felonious under the eavesdropping statute. He said that it has been common practice in more than one courtroom, including appellate courtrooms, for the court or court reporters to record trial or appellate proceedings; which are public, of course, in almost all cases; without informing or seeking or obtaining consent from the attorneys or parties whose words are being captured on tape.
The reasons for such taping are far from nefarious, Ealy said. Court reporters often audio-record proceedings so that they can check the accuracy of their work. Appellate arguments may be tape recorded so the justices can review them during deliberations or so a justice who was absent can listen to them. But notwithstanding the public nature of court proceedings, the courts and court reporters in those cases are habitual felons under the eavesdropping statute, Ealy said.
There are a few situations that the statute exempts, Ealy noted. Television and radio stations, for example, are permitted to tape record conversations for later broadcast, though the exemption applies only as long as "the public is in attendance and the conversations are overheard incidental to the main purpose for which such broadcasts are then being made." 720 ILCS 5/14-3(c). But the print media aren't included in this exemption; so, unlike a television commentator, a newspaper reporter must rely on the accuracy of his or her handwritten notes instead of taping an interview without the subject's expressed consent.
Law enforcement recordings of traffic stops also are permissible under 720 ILCS 5/14-3(h). But once the stop becomes an arrest, the recording must stop. Ealy, who does criminal-defense work, said that for an officer to continue to record without consent, for example, at the time of a subject’s “booking” is illegal. But Ealy said such a recording scenario was common practice in his county until just recently.
What about electronic communications, such as e-mail or Internet chat or instant messaging? PA 91-657 amended the statute, effective January 1, 2000, to specifically cover them. As a result, some attorneys are making the argument that saving or printing out an e-mail is felonious.
Is it really that bad?
ISBA member and Peoria County State's Attorney Kevin Lyons agrees that the scenarios Ealy posits are not out of the question under the statute. He said, however, that cases such as People v Beardsley, 115 Ill 2d 47, 503 NE2d 346 (1986) (overturning an eavesdropping conviction because the subjects didn't intend their conversation to be private), and People v Herrington, 163 Ill 2d 507, 645 NE2d 957 (1994), (holding that the statute "allows the recording of a conversation by a party to that conversation'') may still present obstacles to the prosecution of such actions though they were decided before the enactment of PA 88-677.
Lyons said that in fact there are very few prosecutions under the eavesdropping statute. The most common contexts in which he sees requests for eavesdropping prosecutions, he said, are nasty divorces, employment relationships gone sour, and student discipline in the schools. For a variety of reasons, prosecutorial discretion is generally exercised in favor of declining to bring charges.
Lyons does believe that consent under the statute may be presumed. He said that when a person calls 911 or the Illinois State Police, for example, consent is implied to the tape recording of the conversation. He also noted that answering machines are not covered by the statute, since those recordings are of unsolicited, unilateral words which do not constitute "conversation" within the meaning of 720 ILCS 5/14-1(d).
Lyons said that amending the statute to address the issues raised by Ealy and others might be possible by breaking the statute down into categories of communications, such as telephone, e-mail, and so on, and addressing what is and what isn't permissible in each category. He said that neither citizens nor law enforcement personnel should have discretion, absent court permission, to decide whether it's OK to record conversations, because the risk of privacy violations is too great.
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