Illinois Eavesdropping Law Facing Developments in Court and Legislature

Illinois differs from many other U.S. states in that it is a "two-party consent" state. Under this law, you cannot make an audio recording unless both you and the other parties that are involved in the recording agree that you can do so. Audio and video recording, especially of police officers, is a hot button topic in Illinois due to a police-eavesdropping case that was recently decided by a federal appeals court.

State Felony to Record Police

Under an Illinois law enacted in 1961, it is a Class 1 felony to make an audio recording of a police officer without the officer's permission. Anyone found guilty of this offense can receive a prison sentence of up to 15 years. This police eavesdropping law was challenged by the American Civil Liberties Union, which planned to start recording police making arrests in public as part of a police accountability program, according to the Chicago Sun-Times.

The U.S. Court of Appeals for the Seventh Circuit held that the law likely violates the First Amendment guarantees of freedom of speech and freedom of the press. It asked the district court to issue a preliminary injunction ordering Illinois police and prosecutors not to arrest or charge anyone for violating the law. In addition, two Illinois circuit courts have found the statute unconstitutional. Those cases are currently on appeal or being considered for appeal.

Legislation May Be Reintroduced in the Fall

While the statute is facing challenges in the courts, the Illinois General Assembly has also become involved. Rep. Elaine Nekritz (D-Northbrook), introduced several pieces of legislation last session that would have changed what many believe is an outdated privacy law, according to the Chicago Tribune. The bill would have decriminalized the recording of a police officer in Illinois, making it legal to record an officer on duty and on public property. However, state Sen. Michael Noland (D-Elgin), the chief sponsor of the bill in the senate, wanted language inserted into the bill that would allow more leeway for police to record citizens. He withdrew the bill from consideration from the senate floor after a 15-minute debate, prohibiting a vote.

That might not be the end of legislation addressing the issue. If the courts do not actively resolve the matter, Nekritz said that this coming November she would "love to take [another] run at it in the veto session," reported The Register-Mail.

If you have been charged with a state felony, you should consult with a knowledgeable and skilled criminal defense attorney who can aggressively defend you and seek to have the charges reduced or dismissed.