Audiotaping on-duty police officers in Illinois and the eavesdropping statute
Although it seems as if most persons carry cell phones capable of recording interactions with police, please be aware that s the non-consensual audiotaping of conversations with on-duty police is eavesdropping in Illinois, a Class1 felony. Under 720 ILCS 5/14-1, et. al. an eavesdropping device is defined as “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.” Non-consensual taping of conversations, with some exceptions, is considered eavesdropping.
Eavesdropping on a private citizen is a Class 4 felony for a first offense and a Class 3 for a subsequent offense. The penalty is enhanced to a Class 1, punishable up to a maximum of 15 years in the penitentiary for “The eavesdropping of an oral conversation or an electronic communication between any law enforcement officer, State’s Attorney, Assistant State’s Attorney, the Attorney General, Assistant Attorney General, or a judge, while in the performance of his or her official duties, if not authorized by this Article or proper court order.”
Persons have been arrested and prosecuted under this statute for audio-taping encounters with on-duty police officers. This law, as applied to the taping of interactions with on-duty police officers, has been challenged.The American Civil Liberties Union filed suit against the Cook County States Attorney’s Office in federal District Court alleging that the statute violated its First Amendment rights to monitor police conduct in ACLU v.. Alvarez. The District Court dismissed its suit for lack of standing, in that the ACLU did not face prosecution or even threatened prosecution for its anticipated conduct. The ACLU has appealed and the case is pending before the 7th Circuit Court of Appeals. Additionally, Crawford County Judge David K. Frankland ruled the statute to be unconstitutional in People v. Allison, 2009 CF 50. Notice of appeal in the Allison case has been filed in the Illinois Supreme Court.