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Amended Illinois Eavesdropping Act in Effect

By February 2, 2015April 29th, 2015News

As we previously reported, last March the Illinois Supreme Court struck down the Illinois Eavesdropping Act as unconstitutional for being overly broad, finding that it criminalized a wide range of innocent conduct and burdened substantially more speech than necessary to serve a legitimate state interest in protecting conversational privacy. (See April 2014, Extra Mile). Effective December 30, 2014, P.A. 98-1142 revised the Eavesdropping Act in an attempt to address the court’s concerns.

The former version of the Act made it a felony to record any conversation without all-party consent, which the Court found to be overbroad.

The revised Act defines eavesdropping as an individual’s surreptitious use of a device for the purpose of:

1) overhearing, transmitting or recording any part of a “private conversation” without the consent of all parties, regardless of whether the individual is a party to that private conversation, or

2) intercepting or recording a “private electronic communication” to which the individual is not a party.

The amendment defines “private conversation” and “private electronic communication” as conversations in which at least one of the parties involved had a reasonable expectation that the conversation was private. A “reasonable expectation” is then defined as any expectation recognized by state or federal statute, common law, or Supreme Court rule.

One high profile effect of the previous version of the Act was its use to prohibit the recording of interactions with police officers. While the revised statute continues to include a penalty for the recording of a law enforcement officer, state’s attorney or judge, it would appear that prior court rulings finding that police officers have no reasonable expectation of privacy in the public performance of their duties would allow the recording of most police interactions under the reasonable expectation of privacy standard of the revised Act.

Further, the penalty for recording such officers in violation of the Act has been reduced. Recording of meetings in school districts, especially in the special education context, has been a controversial issue. Remember, however, that the Open Meetings Act specifically allows recording of board meetings.

Contact Bennett Rodick or Michelle Todd with your inquiries regarding the impact of the new eavesdropping legislation on your school district/cooperative.