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posted on 3/23/15

In March 2014, the Illinois Supreme Court ruled that the state’s eavesdropping statute was unconstitutional. Specifically, the court found that the statutory language was too broad because it criminalized recordings of public conversations, such as political debates on college quads. The court reasoned that the law violated the First Amendment because it does not make sense to penalize “eavesdropping” when the speaker has no expectation of privacy.

In December, Governor Pat Quinn signed new eavesdropping rules into law. Under the new law, private conversations – in which the parties reasonably expect the discussion to remain private – can only be recorded if all parties consent. For example, suppose that your coworker is having a private telephone conversation, but his office door is cracked and you can hear his end of the discussion. It is illegal to record that conversation. Even though his door is cracked, he has an expectation of privacy within his own office. However, if he is having the same conversation on his cell phone outside of the building (in a public place) and is speaking loudly then there is no expectation of privacy. That conversation may be recorded.

A first-time offender may be convicted of a Class 4 felony, punishable by one to three years in prison and a $25,000 fine. A subsequent offense is a Class 3 felony, punishable by two to five years in prison and a $25,000 fine.

Eavesdropping by Law Enforcement

If the eavesdropping offense is committed by a law enforcement officer in the course of his duties, then the punishment is harsher. A first-time offense is a Class 3 felony while a subsequent offense is a Class 2 felony, punishable by three to seven years in prison and a $25,000 fine. However, there are circumstances in which police may eavesdrop on otherwise private conversations without penalization.

Generally police must seek a warrant before recording a private conversation. Here are several exemptions under the new eavesdropping law:

  • Recordings made simultaneously with the use of an in-car video camera when the police officer makes a traffic stop;
  • Recordings of a conversation when one of the participants has a reasonable suspicion that the other person is committing, has committed or is about to commit a crime against the first participant;
  • Recording the interview or statement of any person when he knows that the interview is being conducted by law enforcement and it takes place at a police station; and
  • The use of an eavesdropping camera or audio device during an ongoing hostage or barricade situation when such actions are necessary for law enforcement to protect the public safety.

These are only some of the exemptions allowed under the state law. If you are charged with illegal eavesdropping, or if information received from an illegal recording is used against you in a court of law, contact one of our Schaumburg criminal defense attorneys at Glasgow & Olsson today. We can assist those in the Chicago area and the surrounding suburbs. Call 847.577.8700 for a free initial consultation.