Illinois “Eavesdropping” Law Declared Unconstitutional but
It is still the law of the land so mind what you video!
Recently a neighbor of mine in Marion County, Illinois called the county deputy on me for the third time in two months. This all started when I politely asked them to pick up the trash they were just ejecting into a pile on a lot they don’t even own. This wasn’t just any pile of trash either. It was a 15′x15′, 2′ high pile of household trash that apparently contained dead animals, tire carcasses and other assorted nasty things. I saw a rat on my property and walked over to ask them to be more “neighborly”.
Marion County Deputies stopped by and told me not to “trespass” on their property anymore, something I didn’t intend to do anyway since my next move was to advise the IL EPA to the mess. In the meantime from my neighbor’s property have come shouts of “Nigger”, and the occasional attempts at intimidation by having his grown kid parading around with baseball bats. Last week another individual who was reported by someone else to the EPA, stopped by and threatened me as “your worst nightmare”. This last Saturday, April 29th, in pursuit of documenting the mess, I was taking some pictures with the intent of taking some video. The neighbor then popped out and started in with verbal abusing me. I asked him not to address me and his tirade continued. After he made the statement, “You should go home and watch out because I haven’t done anything to you yet”, I finally responded and said to him “why would you threaten me, you know I am recording all this….”
Re-enter the Marion County Deputies and Illinois “Eavesdropping” Law..
Illinois has a particularly vague piece of law written into the Criminal Code. 720 ILCS 5/14-1 basically makes it illegal to record a conversation between two people without first getting their consent. This law also mandates if you know someone who is recording audio, must report that individual to law enforcement. Although there are some exceptions to this law, those are very well-defined.
Three important definitions from within the criminal code:
a) Eavesdropping device.
An eavesdropping device is any device capable of being used to hear or record oral conversation or intercept, retain, or transcribe electronic communications whether such conversation or electronic communication is conducted in person, by telephone, or by any other means; Provided, however, that this definition shall not include devices used for the restoration of the deaf or hard‑of‑hearing to normal or partial hearing.
An eavesdropper is any person, including law enforcement officers, who is a principal, as defined in this Article, or who operates or participates in the operation of any eavesdropping device contrary to the provisions of this Article.
For the purposes of this Article, the term conversation means 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.
By sheer luck, meaning instead of pushing “record”, I pushed “off”, my camera never got into the “record video” mode when my neighbor was committing verbal abuse. Deputies basically insisted on me showing the pictures and also suggested that someone might get arrested. The charge for “Eavesdropping’ per this statute is Class 1 Felony.
I did admit to the deputy that I was in the process of recording the property before the neighbor started his verbal battery. I then asked them if I had recorded this abuse, would I be arrested and he said yes. While someone can call you Nigger and at worst face “Disorderly Conduct”, if you record that threat, you could face a felon charge.
I found that pretty incredible that recording what appears to be a crime, could be a crime. Then I looked up the actual criminal code. Digging deeper into that law, I find something that will cause me to have a conversation with the State’s Attorney
Under exemptions I found this.
(i) Recording of a conversation made by or at the request of a person, not a law enforcement officer or agent of a law enforcement officer, 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;
This exemption appears to be pretty straightforward in defining that if a Citizen has a “reasonable suspicion” that a crime is going to committed, he has the right to record the conversation without first getting permission. I had a reasonable suspicion my neighbor would continue to commit “Disorderly Conduct” or
Actually my first thought was if someone is cussing you out and you are not talking back, it isn’t a conversation to start with. Theoretically if I had my much better HD camcorder out and had recorded his comments, I’d have been in my rights to document a crime. At least that is what my interpretation of the law is.
Alas, in the field the Deputies were either not aware of this exemption or don’t think it applied to the situation. As it is, the Deputies acquitted themselves professionally. Being a Deputy is often thankless, underpaid and they need to be darn near attorneys regardless of their jurisdiction.
In review, it would appear that I was well within my right to take video of the property and as many pictures of the neighbor I saw fit. On the other hand,until the law is modified or it is packed away by the Illinois Supreme Court, people should be taking silent movies to be safe. Understand that just the act of recording could get you arrested even though the law has been declared unconstitutional. Also it is the recording of audio that is illegal and it doesn’t matter if it is your phone, pocket recorder, video camera or camera that can record video.
It would appear I was one “right” button away from being another case to nail this law into the box of non-existence. This is very bad legislation. If 720 ILCS 5/14-1 were to survive the March 2, 2012 ruling of “Unconstitutional” by Cook County Criminal Courts Judge Stanley Sacksas, as well as several other court rejections, I’d it would eventually run into the United States Supreme Court and the First Amendment.
Until then, I’d suggest that phones in Illinois should not have video with audio enabled. If this law remains in force, I’d suggest that any video taken in Illinois that has conversation in it and is subsequently posted on YouTube could be used as evidence against the videographer. The law is so broad that you could be arrested if you took a video at a wedding and didn’t post it. It doesn’t matter if you have your device hidden or out in public.
To take this to an even crazier level, before this law was enacted, I did the sound for a rally where a Presidential Candidate and standing Senator spoke. I recorded those speeches as did many with their phones-video and other video cameras. Today that would be illegal in Illinois without prior consent.
I will admit that the law caught me off guard, but that won’t happen again. Instead there will be a follow-up conversation with the Marion County State’s Attorney as well as other counsel. The main reason is I don’t really see an exemption in this law that allows for the gathering of news.
If you would care to research this law there have been a few other challenges, and an IL Supreme Court visit is due later this year.
ACLU of Illinois v. Alvarez, currently before the U.S. Court of Appeals in Chicago (7th Cir.), is a preenforcement challenge to the law, meaning that no one in the case was actually arrested.
Illinois v. Allison, involves a man who was arrested and charged with five counts of violating the eavesdropping law. The trial court ruled that the law was unconstitutional, and that ruling is currently under review by the Supreme Court of Illinois.
The third case is a civil lawsuit by Tiawanda Moore, who was arrested, tried, and found not guilty of violating the statute. She recorded two police officers who she claimed were wrongfully impeding her ability to file a sexual harassment complaint against another officer.
The 1st Circiut U.S. Court of Appeals, Boston, MA, eals in Boston (1st Cir.) ruled that this kind of filming is a “basic and well-established liberty safeguarded by the First Amendment,” in a case involving a complaint filed by a Boston man who filmed the scene of an October 2007 arrest on his cell phone, only to be arrested himself and charged with a violation of Massachusetts wiretapping laws. (This decision was cited in Illinois cited this decision as a “persuasive authority” for ruling on similar cases.)