Court deals Illinois eavesdropping law final blow

Illinois' Supreme Court declared one of the nation's toughest eavesdropping laws unconstitutional, saying Thursday that the law was so overly broad that it would technically make the recording of screaming fans at a football game a crime.

The ruling is the final defeat for the Illinois Eavesdropping Act, which had made it a felony for someone to record a conversation unless all parties involved agreed. The 1961 law violates free speech and due process protections, the court decided in unanimous decisions in two related cases focused on audio recordings.

State legislators will now have to draft new rules in a very different privacy environment than existed five decades ago.

"The burden is now on the legislature to craft a statute that actually serves the goal of protecting privacy - and that does so without infringing on the rights of citizens to keep public officials honest," said Gabe Plotkin, a lawyer for Annabel Melongo, a defendant in one of the two cases.

Melongo spent nearly two years in jail after being charged under the statute for recording a Cook County court official over the phone who she believed wasn't carrying out her duties properly.

The Illinois law had suffered earlier defeats, including in 2012 when the 7th U.S. Circuit Court of Appeals struck down a provision that barred anyone from video recording police officers doing their jobs in public. Thursday's decisions - in People v. Melongo and People v. Clark - mean lawmakers in Springfield will have to ensure the statute complies with court findings.

"Instead of serving as a shield to protect individual privacy, the statute was written so broadly that it allowed the state to use it as a sword to prosecute citizens for monitoring and reporting on the conduct of public officials," Plotkin said.

State Rep. Elaine Nekritz, a vocal opponent of the law's ban on recording police, said the eavesdropping law did help establish what she described as a sound principle that two parties in a clearly private conversation must both agree about recording the conversation.

"Some lawmakers may try to abandon the two-party consent rule, and I don't support abandoning it (altogether)," the Northbrook Democrat said. "We need to have an eavesdropping law. ... We have to find a balance."

The Illinois justices took pains to say that protecting truly private discussions would be lawful, including because "the fear of having private conversations exposed to the public may have a chilling effect on private speech," they said in their opinion in the People v. Clark.

But as written, Illinois' law criminalizes recordings of conversations that are clearly public, the high court concluded. Under the law, it said, recording a political debate on a college quad, a vocal argument on a street corner or fans yelling at a game could be deemed a crime.

"Judged in terms of the legislative purpose of protecting conversational privacy, the statute's scope is simply too broad," the justices wrote.

Whether someone has an expectation of privacy is often the standard nationwide for deciding if a conversation is private or not, but Illinois' statute does not include that guideline, the justices added, suggesting that was a serious flaw.

The ubiquity of smartphones and sophisticated listening technology made it that much harder to impose the appropriate restrictions, the court conceded. But it said that didn't justify a statute so sweeping and ill-defined as to undermine constitutional rights.

The eavesdropping law also affected the work of the media, prohibiting them from recording an interview subject over the phone without that person's consent. The law's demise raises questions about whether the legal obligation remains in effect.

Melongo made her recording because she said the official wouldn't correct a mistake in the transcript of a separate case related to her; she also posted the recording online. The Cook County state's attorney's office appealed to the high court after Melongo's trial judge dismissed charges against Melongo.

Neither the Cook County state's attorney's office nor the Illinois attorney's general's office, which filed the appeal in the People v. Clark case, had an immediate comment.