March 2, 2014

By James A. Petrungaro

 Today, the Illinois Supreme Court announced that the Illinois eavesdropping law (Article 14 of the Criminal Code) is unconstitutional because it criminalizes wholly innocent conduct and conversations never intended to be private, thus violating the due process protections of the U.S. Constitution.

Prior to its being declared unconstitutional, Illinois’ eavesdropping law was the only law in the country that required all parties to a conversation to consent to its recording. If even one person participating in a conversation failed to consent (expressly or impliedly) to the conversation being recorded, no matter the circumstances of the conversation, it would be a violation of the eavesdropping statute to record that conversation. Most other states require consent of only a single party to the conversation.

Considering two criminal cases where citizens were prosecuted for recording conversations without the consent of all parties (one case involved the recording of a phone conversation; the other involved the recording of a conversation with an attorney and a judge), the Supreme Court considered the over-reaching application of Illinois’ law and its criminalization of innocent conduct. For example, the Court noted that recording an open conversation in a public square or at a public sporting event – conversations that lack any reasonable expectation of privacy – would be criminal absent consent from each of the conversation participants.

With this ruling, the criminal aspect of the eavesdropping law in Illinois is no longer enforceable. Although the eavesdropping law includes a civil penalty as well, which the Court did not address in today’s decisions, it is likely that the lower courts will interpret the entire statute to be unconstitutional. While the Legislature may pass a more narrowly tailored law in the future that would prohibit the recording of truly private conversations, there is presently no general law against recording conversations.

With the eavesdropping law no longer enforceable, School Districts may face situations in which individuals either openly or surreptitiously record conversations with staff, administrators and/or board members. Scariano, Himes and Petrarca is analyzing the impact of the Court’s decision and is prepared to assist you as you encounter these situations.