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Government LawyersThe newsletter of the ISBA’s Standing Committee on Government Lawyers

October 2012, vol. 14, no. 1

Updating eavesdropping: ACLU v. Alvarez and potential legislation

Introduction

Prior to the Seventh Circuit’s opinion in ACLU v. Alvarez,1 Illinois’ eavesdropping statute prohibited all audio recordings of any oral communication absent consent of all the parties. Violation of the statute constituted a class 4 felony. If one of the communicating parties was a law enforcement officer, the charge was upgraded to a class 1 felony punishable with a possible prison sentence of four to fifteen years. In Alvarez, the Seventh Circuit ruled that the law was likely unconstitutional and directed the district court to issue a preliminary injunction barring prosecutors from enforcing the statute against people who openly record police officers performing their duties in public. The opinion only tackled a part of the issue surrounding Illinois’ eavesdropping statute and even raised new questions about the portion it aimed to resolve. The unresolved issues will have to be addressed by future opinions or legislation.

Background

The Illinois General Assembly first enacted the eavesdropping law in 1961.2 The statute made it a crime to use an eavesdropping device to hear or record any oral communication without “the consent of any party thereto.” In 1976, the legislature amended the statute to require the consent of all parties to the communication.3 In 1986, the Illinois Supreme Court ruled that the eavesdropping law only protected communications that involved an “expectation of privacy.”4 Thus, neither party needed to give consent if the conversing parties did not have an expectation of privacy. In 1994, the Illinois Supreme Court clarified that no expectation of privacy existed if one of the parties to the conversation was the recording party.5 This allowed a person to secretly record a conversation so long as they were a participant. Following these two decisions, the Illinois General Assembly amended and strengthened the statute by making it applicable to any oral communication “regardless of whether one or more of the parties intended their communication to be of a private nature under circumstances justifying that expectation.”6 This amendment pushed back against the Illinois Supreme Court decisions that effectively narrowed the statute. Now, it was clear that all parties needed to give consent before any recording could take place.

In contrast to the recording restrictions the statute places upon the general public, police are allowed to record a variety of situations as part of their law enforcement duties.7 For example, the Seventh Circuit noted that police have the discretion to record an array of encounters loosely classified as “enforcement stops” without the consent of the other parties involved. Enforcement stops include “traffic stops,” “motorist assists,” “pedestrian stops,” and “requests for identification.” Secret recordings and interceptions for police investigations are covered by other subsections of the statute.8

ACLU v. Alvarez arose from the ACLU’s request for declaratory judgment and injunctive relief against Cook County from enforcing the eavesdropping statute. This preenforcement action rested on a narrow issue: whether Illinois prosecutors could enforce the eavesdropping statute against people who openly record police officers performing their official duties in public. The district court initially dismissed the suit because the plaintiff did not sufficiently allege a threat of prosecution, and thus did not have standing to pursue the preenforcement action.9 After the ACLU cured that defect in an amended complaint, the court again dismissed the suit, this time with prejudice, because the ACLU did not allege a cognizable First Amendment injury, as nothing in the First Amendment protects the “right to audio record.” The ACLU appealed the ruling to the United States Court of Appeals for the Seventh Circuit.

Analysis

On appeal, the Seventh Circuit discredited the State’s argument that audio recordings are wholly unprotected by the First Amendment. The Seventh Circuit found that audio and audiovisual recordings are used to preserve and disseminate ideas and information, and therefore enable speech and implicate First Amendment rights. The Seventh Circuit concluded that the district court’s dismissal of the ACLU’s suit was based on an incomplete and incorrect reading of precedent.10 In Potts v. City of Lafayette,11 the Seventh Circuit did not, as the district court asserted, state a categorical principle that recordings are not protected under the First Amendment. Rather, Potts stated that the right to gather information can be limited under certain circumstances, but the limiting regulation must be appropriate under the “time, place, or manner” standard.12

The ACLU challenged its right to openly record—not to secretly record. The Seventh Circuit stressed the distinction between the two circumstances: “At the risk of repeating ourselves, this case has nothing to do with private conversations or surreptitious interceptions.”13 The problem with Illinois’ statute is its expansive scope. It does not simply outlaw secret recordings, but “sweeps much more broadly, banning all audio recording of any oral communication absent consent of the parties regardless of whether the communication is or was intended to be private.”14 The blanket eavesdropping rule infringes on basic speech and press freedoms, and the First Amendment limits the extent to which the statute may restrict recordings of public speech. The Court explained: “Any way you look at it, the eavesdropping statute burdens speech and press rights and is subject to heightened First Amendment scrutiny.”15

The constitutional analysis consisted of weighing the public’s interest in the recordings against the State’s interest in their prohibition. Because the ACLU wished to record public officials carrying out their duties in public places, the ACLU had strong First Amendment interests.16 While there was some discussion of whether the statute should be analyzed under strict or intermediate scrutiny, the Seventh Circuit sided with the lesser burden.17 To pass the required intermediate level of scrutiny, the government would have to show that its regulation was (1) content neutral; (2) justified by an important public interest; and (3) not a greater burden on the right than is necessary to serve the government’s interest.18 The majority found that the State likely met the first requirement, but failed the latter two.19

The Court did not accept the State’s privacy interest rationale and reasoned that even if the interest was acceptable, the means was not. While the Court agreed that conversational privacy is an important governmental interest, it rejected the privacy rationale because police officers speaking audibly in public places do not have any “reasonable expectation of privacy.”20 Further, even if the State fulfilled the second requirement, the third requirement is not met because the statute is unreasonably broad for the aim: “by making it a crime to audio record any conversation, even those that are not in fact private—the State has severed the link between the eavesdropping statute’s means and its end.”21 The law is unacceptable because the legislature made no attempt to tailor the law to specifically serve its goal of protecting personal privacy. Instead, it bans all recordings of oral communications regardless of whether any privacy interests are implicated.

The Seventh Circuit reasoned that to ban the open recording of non-private public activities by police officers does not serve the government’s privacy interests. Thus, under these circumstances, the eavesdropping statute is likely unconstitutional and the preliminary injunction should be granted. The Court left unresolved the issue of secret recordings. In a footnote, the Court noted that the First Amendment may also protect secret recordings, but the scrutiny analysis regarding those recordings would implicate stronger privacy interests.22 In addressing concerns regarding effective law enforcement, the Court noted that police could still control a scene and deliver moving orders to bystanders based on public safety and legitimate law enforcement needs. Thus, while the Court’s decision withdrew the authority of police to preclude recording, it noted the remaining remedies police may use to control a public situation.

In his dissent, Judge Posner framed the issue differently than the majority, focusing on the privacy of civilians rather than police. Regarding secret recordings, he seemed receptive to the right of a civilian to secretly record a police officer: “Maybe [the statute is] too strict in forbidding nonconsensual recording even when done in defense of self or others, as when the participant in a conversation records it in order to create credible evidence of blackmail, threats, other forms of extortion, or other unlawful activity.”23 But when a civilian’s right to privacy is implicated, Judge Posner was more reluctant to allow recordings: “Police may have no right to privacy in carrying out official duties in public. But the civilians they interact with do.”24 Whether the civilian is a suspect, witness, or victim, Judge Posner argued that allowing recordings of interaction with police will undermine the civilian’s privacy and also undermine effective law enforcement by police.25

Judge Posner also raised questions regarding “open” recordings. In a smart phone society, nearly everyone can record a public interaction and it is not altogether obvious what constitutes an “open” recording, because a cell phone can be “hidden in plain view.”26 Civilians wishing to keep private their conversations with police may not know that they are being recorded. The fact that police will be wary of cell phone recorders “will increase security concerns by distracting police.”27 Posner ultimately reasoned that people’s right to nonconsensually record police interactions in a public place is outweighed by the civilian’s privacy interests and the interests of effective law enforcement. Furthermore, Posner’s dissent on the issue of “open” recordings raises questions about the ease to which the majority’s decision can be applied to future situations involving public recordings.

Potential Legislation

Alvarez’s narrow holding altered the law yet did not resolve all of the controversial issues. Proposed amendments to the eavesdropping statute worked their way through the General Assembly but ultimately failed to pass both houses. The proposed amendment that passed the House carved out an exception to the eavesdropping law for conversations involving police officers in public places while defining public place:

(q) A person who is not a law enforcement officer nor acting at the direction of a law enforcement officer may record the conversation of a law enforcement officer who is performing a public duty in a public place and any other person who is having a conversation with that law enforcement officer if the conversation is at a volume audible to the unassisted ear of the person who is making the recording. For purposes of this subsection (q), “public place” means any place to which the public has access and includes, but is not limited to, streets, sidewalks, parks, and highways (including inside motor vehicles), and the common areas of public and private facilities and buildings.28

Notably, the proposed amendment did not refer to open or secret recording—just recording. Thus, the statute appears to have addressed the issue that the Alvarez majority left unresolved—the issue of secret recordings. Under this proposal, any type of recording would seem acceptable under the new statute so long as one of the parties was a police officer and the conversation was audible in a public place. Judge Posner’s concerns of what qualifies as a secret or open recording in public would no longer be an issue. Further, because this amendment defined public place, the statute provided guidance and would have expanded the boundaries of the law. For example, because “public place” included the inside of a motor vehicle on a highway, it appears that the legislature was specifically allowing citizens to record their interactions with police during traffic stops.

The amendment also included a provision which would call for the prosecution of anyone who intentionally altered the recording of a police officer:

If a recorded conversation authorized under subsection (q) of Section 14-3 of the Criminal Code of 1961 is used by the complainant as part of the evidence of misconduct against the officer and is found to have been intentionally altered by or at the direction of the complainant to inaccurately reflect the incident at issue, it must be presented to the appropriate State’s Attorney for a determination of prosecution.29

This legislation, while passing the House, stalled in the Senate because some legislators were still unsatisfied with the amendments and wanted to see police officers have even more discretion with their own recordings. Consequently, the General Assembly was unable to reach an agreement on the statute and resolve the controversies. So, while statutory change is in order, disagreement over the appropriate change has hindered the process. It is possible that future opinions will answer some of the questions that the General Assembly failed to resolve. It is also possible that the General Assembly will pass legislation that will help guide courts in deciding the murkier issues.

Conclusion

ACLU v. Alvarez changed the landscape of the eavesdropping law in Illinois. Prosecutors can no longer enforce the law against people who openly record police officers performing their duties in public. The Seventh Circuit’s ruling did not resolve the issue of secret recordings, and the dissent cast skepticism over the distinction between open and secret recordings. The General Assembly tried but ultimately failed to amend the statute. The final outcome of this legal issue remains undecided, and it is unclear whether clarifications will come by way of judicial opinions or legislative amendments. It is further difficult to predict whether the scope of the law’s exceptions will extend from police officers to other public officials. While the statute’s future is uncertain, prosecutors will undoubtedly have to apply it differently than in the past.

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This article is reprinted from the August 2012 issue of the ISBA’s Local Government Law newsletter.

Jordan M. Kielian is a Summer Associate at Mahoney, Silverman & Cross, LLC, and a Third Year Law Student at Washington University in St. Louis, MO.

David J. Silverman is with the firm of Mahoney, Silverman & Cross, LLC.

 

1. ACLU v. Alvarez, 2012 U.S. App. LEXIS 9303 (7th Cir. May 8, 2012).

2. Id. at 4.

3. Id. at 5.

4. People v. Beardsley, 115 Ill. 2d 47 (Ill. 1986).

5. People v. Herrington, 163 Ill. 2d 507 (Ill. 1994).

6. Alvarez, 2012 U.S. App. LEXIS at 6.

7. Id. at 7.

8. Id.

9. Id. at 9.

10. Id. at 17.

11. 121 F.3d 1106 (7th Cir. 1997).

12. Alvarez, 2012 U.S. App. LEXIS at 18-19.

13. Id. at 63.

14. Id. at 29.

15. Id. at 45.

16. Id. at 36.

17. Id. at 56.

18. Id. at 58.

19. Id. at 59.

20. Id. at 60.

21. Id. at 62.

22. Id. at FN 13.

23. Id. at 70.

24. Id. at 82.

25. Id. at 87.

26. Id. at 84.

27. Id.

28. TITLE: CRIM CD-TAMPERING PUBLIC RCD, 2011 Illinois Senate Bill No. 1808, Illinois Ninety-Seventh General Assembly - First Regular Session.

29. Id.


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