Illinois Supreme Court strikes down broad ban on audiorecording conversations

Under Illinois law, any person who “knowingly and intentionally uses an eavesdropping device for the purpose of hearing or recording all or any part of any conversation” is committing a crime “unless he does so … with the consent of all of the parties to such conversation or electronic communication.” This isn’t limited to conversations that the parties reasonably intend to be private: “conversation” is defined as as “any oral communication between 2 or more persons regardless of whether one or more of the parties intended their communication to be of a private nature under circumstances justifying that expectation.”

DeForest Clark was indicted for violating this law; here’s how the ACLU of Illinois amicus brief describes the facts:

[The] charges arose from a September 17, 2010 child support hearing before Judge Robert Janes in Kane County Circuit Court. Mr. Clark represented himself pro se at the hearing. The hearing was conducted in open court and no court reporter was present. Mr. Clark recorded the hearing in order to preserve a true and accurate record of public proceedings in which he was representing himself without the assistance of counsel and without the benefit of a court reporter. For the same reason, Mr. Clark also allegedly recorded a conversation between himself and opposing counsel, Colleen Thomas, prior to the hearing in a public hallway in the Kane County Judicial Center.

Thursday, the Illinois Supreme Court held that the statute violates the First Amendment (People v. Clark (Ill. Mar. 20, 2014)) (some paragraph breaks added, some removed):

The question before this court is whether the means the legislature has chosen to further this interest in conversational privacy places a substantially greater burden on speech than is necessary to further the interest.

Individuals have a valid interest in the privacy of their communications and a legitimate expectation that their private conversations will not be recorded by those not privy to the conversation. In addition, the fear of having private conversations exposed to the public may have a chilling effect on private speech. The eavesdropping statute thus legitimately criminalizes audio recordings in these instances. The purpose of the statute to protect private conversations is thus served.

However, the statute does not stop there. It criminalizes a whole range of conduct involving the audio recording of conversations that cannot be deemed in any way private. For example, the statute prohibits recording (1) a loud argument on the street; (2) a political debate in a park; (3) the public interactions of police officers with citizens (if done by a member of the general public); and (4) any other conversation loud enough to be overheard by others whether in a private or public setting. None of these examples implicate privacy interests, yet the statute makes it a felony to audio record each one. Although the statute does contain several exemptions from the general prohibition, none of the examples above would come within any of those exemptions…. [The statute is] a general ban on audio recordings of any oral communication whatsoever, absent consent from all parties, except in limited circumstances that mostly apply to law enforcement authorities.

[Paragraph moved -EV:] [T]he State argues that, faced with the serious and ever-increasing threat to conversational privacy posed by the widespread availability of mobile recording devices, the legislature opted for a solution that may be over-inclusive. However, the State contends, the alternative was to risk being under-inclusive by leaving unprotected from non-consensual recording a substantial universe of conversations that the parties in fact intended to be private. The State argues that this is a policy decision best left to the legislature.

Audio recordings of truly private conversations are within the legitimate scope of the statute. The prohibition on those recordings serves the purpose of the statute to protect conversational privacy.

However, the statute’s blanket ban on audio recordings sweeps so broadly that it criminalizes a great deal of wholly innocent conduct, judged in relation to the statute’s purpose and its legitimate scope. It matters not whether the recording was made openly or surreptitiously. The statute prohibits the recording in the absence of consent of all parties. And, while the consent need not be express, any implied consent will become a factor only after an individual has been charged with a violation of the eavesdropping statute and raises implied consent in defense.

If another person overhears what we say, we cannot control to whom that person may repeat what we said. That person may write down what we say and publish it, and this is not a violation of the eavesdropping statute. Yet if that same person records our words with an audio recording device, even if it is not published in any way, a criminal act has been committed.

The person taking notes may misquote us or misrepresent what we said, but an audio recording is the best evidence of our words. Yet, the eavesdropping statute bars it.

Understandably, many people do not want their voices broadcast to others or on the Internet to be heard around the world. But, to a certain extent this is beyond our control, given the ubiquity of devices like smartphones, with their video and audio recording capabilities and the ability to post such recordings instantly to the Internet.

Illinois’ privacy statute goes too far in its effort to protect individuals’ interest in the privacy of their communications…. The statute therefore burdens substantially more speech than is necessary to serve the interests the statute may legitimately serve. Accordingly, the statute does not meet the requirements necessary to satisfy intermediate scrutiny.

We hold that section (a)(1)(A) of the eavesdropping statute is overbroad because a substantial number of its applications are unconstitutional, judged in relation to the statute’s plainly legitimate sweep. Given our holding, it is unnecessary to address the parties’ other contentions.

I think the court was correct to hold this statute unconstitutionally overbroad. I am uncertain, though, whether the court was right to say that the ban would be constitutional if it were limited to communications that one party expects to be private (i.e., I’m talking to you, and you record this even though I was intending that our conversation “be of a private nature”). Such surreptitious recording — which is legal in most states — can often uncover a good deal of important, even newsworthy information.

Moreover, the court’s argument beginning with the paragraph that starts with, “If another person overhears what we say, we cannot control to whom that person may repeat what we said,” applies equally to conversations that one person expects to remain private. Nonetheless, that remains a matter for another case.

Note, by the way, that the Illinois statute does have one narrow but important exception: “Recording of a conversation made by or at the request of a person … who is a party to the conversation, under reasonable suspicion that another party to the conversation is committing, is about to commit, or has committed a criminal offense against the person or a member of his or her immediate household, and there is reason to believe that evidence of the criminal offense may be obtained by the recording.” That at least helps people gather evidence that they need to protect themselves against extortion, threats, false accusations, and other crime — a very valuable exception, it seems to me.

Eugene Volokh teaches free speech law, religious freedom law, church-state relations law, a First Amendment Amicus Brief Clinic, and tort law, at UCLA School of Law, where he has also often taught copyright law, criminal law, and a seminar on firearms regulation policy. Before coming to UCLA, he clerked for Justice Sandra Day O'Connor on the U.S. Supreme Court and for Judge Alex Kozinski on the U.S. Court of Appeals for the Ninth Circuit. Volokh is the author of the textbooks The First Amendment and Related Statutes (4th ed. 2011), The Religion Clauses and Related Statutes (2005), and Academic Legal Writing (4th ed. 2010), as well as over 70 law review articles. Volokh is also an Academic Affiliate for the Mayer Brown LLP law firm.
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