Q&A: Illinois’ new eavesdropping law

Here are some of the answers to your questions about the new eavesdropping law in Illinois:

Why did Illinois need to change its current eavesdropping law? 

In March of this year, the Illinois Supreme Court ruled that portions of Illinois’ eavesdropping law violated free speech and due process protections of the U.S. and Illinois Constitutions.

The court found that, while the law was enacted to protect private conversations from being recorded without consent, as written it was far too broad. It made criminals out of people who recorded conversations that were undeniably public, or that nobody intended to be private.

What was the result of the court’s decision?

The effect of the court’s decision means that anyone can record any conversation, whether private or public, of anyone else with no fear of penalties.

The entire statute was invalidated, stripping the expectation of privacy from all Illinois residents when it comes to eavesdropping or digital recordings, whether in public or in private.

This means all persons in Illinois are left with no legal recourse against their private conversations being recorded without their consent.

Additionally, there is uncertainty as to under what circumstances police can legally record citizens who they suspect of criminal activity. An existing provision of law allowing State’s Attorney-authorized overhears in felony drug cases was set to expire on January 1. There are questions about how police, prosecutors, and judges would handle the issue if this law goes off the books with nothing to replace it.

What is the status of the new law?

Senate Bill 1342, introduced as a rewrite to the eavesdropping law, passed the Illinois House and Senate this session but as of this writing has not yet been signed by the governor.

What would the new law do if enacted?

Senate Bill 1342 prohibits the listening to or recording of people’s private conversation without their consent. It does NOT prohibit the listening to or recording of most public conversations.

How would the new law affect law enforcement?

Under this law a person can record police officers in a public setting, but would be prohibited from secretly recording ANYONE in a private setting, including law enforcement.

Note, the courts have found in situations that are in public, even if the recording is concealed, there is no expectation of privacy for law enforcement.

The law only prohibits the secret recording of law enforcement in situations where there is an expectation of privacy (i.e. two police officers discussing a case at the station).

The new law would reinstate the Class 4 felony from the previous law for concealing the recording of private interactions between Illinois residents, but actually reduces the punishment for recording law enforcement officials from a Class 1 to a Class 3 felony.