Under the new law, it is illegal to use an eavesdropping device to record private conversations unless all parties consent. (See Illinois Eavesdropping Statute.) A private conversation is defined as oral communication between two or more parties, whether in person or through wire or other means, and where one or more of the parties intended the communication to be private under circumstances reasonably justifying that expectation.

A person commits the crime of eavesdropping when he or she knowingly or intentionally uses an eavesdropping device to surreptitiously overhear, transmit or record a conversation to which he or she is not a party unless all parties to the private communication consent. It is also illegal to disclose any information obtained through that eavesdropping.

Police are not permitted to eavesdrop without a court order unless they were unaware that the communication was privileged.

Eavesdropping as a first offense is a Class 4 felony, punishable by 1 to 3 years in prison. A second offense is a Class 3 felony, punishable by 2 to 5 years. Eavesdropping on law enforcement or the state’s attorney while in the performance of their duties is a Class 3 felony for a first offense, and a Class 2 for subsequent offenses.

If you are charged under the new law or for another criminal offense, contact an experienced criminal law attorney immediately. An attorney can review your case to determine your best possible options. As with most crimes, the state must prove all the elements of the offense beyond a reasonable doubt. Did you intentionally eavesdrop? Did the complaining witness really have a justified expectation of privacy?

If you have questions about this or another related Illinois criminal or traffic matter, please contact Matt Keenan at 847-568-0160 or email matt@mattkeenanlaw.com.

(Besides Skokie, Matt Keenan also serves the communities of Arlington Heights, Chicago, Deerfield, Des Plaines, Evanston, Glenview, Morton Grove, Mount Prospect, Niles, Northbrook, Park Ridge, Rolling Meadows, Wilmette and Winnetka.)

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Under the law, a person is guilty of eavesdropping when he or she “knowingly and intentionally uses an eavesdropping device for the purpose of hearing or recording all or any part of any conversation or intercepts, retains, or transcribes electronic communication unless he does so (A) with the consent of all of the parties to such conversation or electronic communication.” 720 ILCS 5/14 2(a)(1)(A).

Prior well-publicized cases have involved individuals recording their encounters with police. A jury acquitted one such defendant and a judge deemed the statute unconstitutional in another defendant’s case. In 2012, the Seventh Circuit Court of Appeals held the law unconstitutional.

Now, the Illinois State Supreme Court has agreed in both Kane and Cook County cases. In People v DeForest Clark, a Kane County defendant recorded conversations involving himself, his ex-wife’s attorney and a judge. The Clark court stated that the law was overbroad, and in a world of smart phones, went too far to protect an individual’s privacy in their communications.

In the Cook County case, the defendant recorded conversations with a court reporter regarding a court transcript’s accuracy. Defendant posted the conversations on her website. (See People v Melongo.) The court held that the eavesdropping statute substantially burdens more speech than necessary to serve the government’s legitimate interest in protecting privacy. In other words, enforcing the statute too often criminalizes otherwise innocent conduct.

If you have questions about this or another related criminal or traffic matter, please contact Matt Keenan at 847-568-0160 or email matt@mattkeenanlaw.com.

(Besides Skokie, Matt Keenan also serves the communities of Arlington Heights, Chicago, Deerfield, Des Plaines, Evanston, Glenview, Morton Grove, Mount Prospect, Niles, Northbrook, Park Ridge, Rolling Meadows, Wilmette and Winnetka.)

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Your friend was charged with a drug-related misdemeanor. But to your surprise, you are the one charged with a felony. Where did you go wrong? What can you do?

Illinois has one of the strictest eavesdropping laws in the country. The law is so strict that the American Civil Liberties Union challenged its constitutionality. The Chicago Sun Times wrote “The law seems deliberately designed to shield police from public scrutiny.”

Under the law any recording of a conversation or electronic communication without all parties’ consent is a crime with some exceptions. But if you recorded a police officer, prosecutor, attorney general or judge, the charges get kicked up a notch.

Illinois law defines eavesdropping as knowingly and intentionally using an eavesdropping device to hear or record a conversation even if the conversation was in public, unless you have everyone’s consent. Even if you direct someone else to eavesdrop for you, or you knowingly obtain a benefit from the eavesdropping, you can be charged with a felony.

If you are law enforcement, there are many exceptions to the rule so that an officer may record you. But if you are a citizen, you could be in a world of trouble. Eavesdropping on regular citizens is a Class 4 felony, punishable by up 1 to 3 years in prison. Subsequent offenses are Class 3 felonies, punishable by 2 to 5 years in prison. However, eavesdropping on law enforcement in the course of their official duties is a Class 1 Felony punishable by 4 to 15 years.

While these charges are not often brought, two high profile Illinois cases have exposed the harsh consequences of the law. Tiawanda Moore was charged after recording police who she believed were sexually harassing her. Fortunately, she was acquitted by a jury and is now suing the City of Chicago. Christopher Drew recorded his arrest for selling art without a permit and was facing up to 15 years in jail. Both Moore and Drew spent time in jail after their arrest. (See Illinois Eavesdropping Act: Tiawanda Moore Sues City and Eavesdropping Laws.)

In a recent development, Drew’s charges were dropped after a Cook County Circuit Court judge ruled the eavesdropping law unconstitutional, saying that it was too broad and could punish innocent conduct such as taping a child’s soccer game. (See Eavesdropping Law Unconstitutional). The Judge’s ruling is not enough, however, to invalidate the law. The ACLU has appealed the law’s validity and a ruling from the 7th U.S. Circuit Court of Appeals is expected. For now, however, the law remains on the books, and you are best advised to steer clear.

UPDATE: The 7th U.S. Circuit Court of Appeals agreed with the ACLU that the law was unconstitutional and overbroad. On November 26, 2012, the U.S. Supreme Court refused to hear the case, which leaves the 7th Circuit’s ruling in place.

If you are charged with eavesdropping you should contact an experienced criminal law attorney immediately. Do not discuss your case with anyone. Any statements you make could jeopardize your defense. An experienced attorney can look for weaknesses in the state’s case. Did the officer have probable cause to stop you? Did you intend to eavesdrop? Did you have consent? The law itself has some exceptions, such as if you record someone because you believe they are about to commit a crime. But even if the state has crystal clear evidence against you, an attorney who is knowledgeable about the courthouse may be able to obtain a better plea agreement than you can on your own.

If you have questions about this or another related criminal or traffic matter, please contact Matt Keenan at 847-568-0160 or email matt@mattkeenanlaw.com.

(Besides Skokie, Matt Keenan also serves the communities of Arlington Heights, Chicago, Deerfield, Des Plaines, Evanston, Glenview, Morton Grove, Mount Prospect, Niles, Northbrook, Park Ridge, Rolling Meadows, Wilmette and Winnetka.)

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