The Journal of The DuPage County Bar Association

Back Issues > Vol. 24 (2011-12)

A Public Servant Doing Public Work in Public is . . . Private? Illinois Eavesdropping Act Under Fire: It’s Time For a Change
By Justin Byrd

Fifteen years in prison for recording a conversation with police officers probably seems unreasonable to most people, as it should. Unfortunately, that is exactly the sentence Tiawanda Moore faced when she sought to document her interaction with Chicago Police Department’s Internal Affairs Office.[1] Fortunately for Moore, her jury thought not only was the sentence unreasonable, but also the charges.[2]

Tiawanda Moore, a twenty-year-old Chicago resident, filed sexual harassment charges against a Chicago Police officer following a July 2010 incident.[3] Moore alleged that, during a domestic disturbance call, she and her boyfriend were separated into different rooms and that the patrol officer fondled her and gave her his personal phone number.[4] When Moore attempted to report the incident to internal affairs officials at the Chicago Police Department, she felt intimidated and was discouraged from filing the report.[5] Quick-thinking Moore, concerned that her rights may be violated, decided to record the interaction on her Blackberry.[6] Unfortunately for Ms. Moore, Illinois is one of the minority of states that make it illegal to record audio of public conversations without the permission of everyone involved.[7] This is especially true for recording of police officers.[8] Further, Illinois may be the only state that has explicitly given a right to privacy to police officers doing their public duty.[9] Instead of being able to file her complaint, Moore found herself under arrest and facing felony charges that afternoon.[10] Luckily for Moore, her jury acquitted her after only a short deliberation.[11] Moore said she was “still shaking” at how close she had come to prison following the verdict.[12]

Moore, having been sexually assaulted by those sworn to protect her, sought to vindicate her rights and, instead, found herself intimidated, blown-off, and even arrested on felony charges.[13] This is not the consequence a reasonable person would wish upon one trying to protect her rights. Unfortunately, this situation is not an isolated one in Illinois. A similar case against a Chicago artist is currently awaiting trial.[14] In addition, at least three other State’s Attorneys in Illinois have brought eavesdropping charges under the Act against civilians who made audio recordings of police officers.[15]

Recently, the Illinois Eavesdropping Act has come under fire from juries and courts, as well as from civil libertarians including the American Civil Liberties Union of Illinois (ACLU).[16] A law that can be used to intimidate and threaten those who, fearing a violation of their rights, seek to document their interactions with police needs to be changed. The Illinois Eavesdropping Act is the broadest in the nation, and as such is unconstitutional and impractical. Illinois would be well served by a broad exception excluding citizens recording police officers from the scope of the statute.

The Law. The Illinois Eavesdropping Act has been described as the most draconian in the nation.[17] Recording a police officer in Illinois is a class one felony,[18] the same class of crime as sexual assault, and is punishable by four to fifteen years in prison.[19] Unlike most states, the statute requires the recording party to have consent of all parties involved.[20] The Eavesdropping Act is one of the broadest in the nation enveloping both open and secretive recordings.[21]

The Act says in relevant part, “A person commits eavesdropping when he: (1) Knowingly and intentionally uses an eavesdropping device for the purpose of hearing or recording all or any part of any conversation . . . unless he does so (A) with the consent of all of the parties to such conversation . . .”[22]

Though most eavesdropping statutes are written or have been construed by the courts to exclude on duty police officers,[23] the Illinois Eavesdropping Act has explicitly given a right of privacy to these public servants doing their public work in public.[24] The Illinois legislature actually amended the statute to purge the requirement of those recorded to prove a reasonable expectation of privacy as well as a one-party consent exception that worked to effectively exclude police officers from coverage.[25]

Like most states, Illinois courts attempted to rectify the overbroad law with judicial interpretation.[26] In 1986, the Supreme Court of Illinois, in People v. Beardsley, added an expectation of privacy requirement as well as a one-party consent defense to the statute.[27] The Court threw out the conviction of Mr. Beardsley, who had recorded a conversation between two officers while he sat in the back of the police car.[28]

In that case, Mr. Beardsley was stopped by a police officer for speeding.[29] While speaking with Mr. Beardsley, the deputy noticed that he was holding a microphone below the window.[30] The officer asked Beardsley to stop recording the conversation, and Beardsley refused.[31] The officer then placed the defendant in the rear seat of the squad car.[32] While waiting for a tow truck for Beardsley’s vehicle, two officers sat in the front seat of the squad car and conversed.[33] As they spoke, the defendant recorded their conversation, allegedly unbeknownst to and without consent of the officers.[34] According to the officers’ trial testimony, neither one of them gave the defendant his consent to record their conversation, nor was either aware that the defendant was taping their conversation.[35]

 In an attempt to limit the overbroad statute, the Court held that the Eavesdropping Act was meant to prohibit only “surreptitious” or secretive monitoring of conversations.[36] Further, the court reasoned that the statute was based on an assumption of an expectation of privacy.[37] Therefore, without an expectation of privacy, the statute would not apply.[38] Police officers executing a traffic stop and arrest on a public highway have no expectation of privacy and, thus, would not be covered by the statute.[39]

 In response to Beardsley, the state legislature amended the statute to include all communications recorded without consent of all parties.[40] The legislature added section (d), which reads, “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.”[41] The legislature did this in an explicit attempt to reverse the ruling of Beardsley.[42] The amendment removed the expectation of privacy requirement added by the court and broadened the court’s interpretation of the statute to include open as well as secretive recordings.[43]

The Attacks On The Statute. Since the 1994 amendment to the statute, and even more so recently, this statute has come under attack from juries, courts, and citizen rights groups.[44] In Moore’s case, the jury took less than an hour to acquit her of all eavesdropping charges.[45] Moore’s jury focused on an exception in the Illinois statute that allows citizens to record conversations normally prohibited by the statute if they have a “reasonable suspicion” that a crime may be committed.[46] After hearing the challenged recording, one juror said, “The two cops came across as intimidating and insensitive.”[47] While Moore’s conduct may not have explicitly fallen within the exception, the jurors took the opportunity to challenge an over inclusive statute. In the recording, one of the investigators explained to Moore that she might be wasting her time because it was her word against the officer’s.[48] The juror said of the recording, “If what those two investigators were doing wasn’t criminal, we felt it bordered on criminal, and she had the right to record it.”[49] He further attacked the statute saying, “Everybody thought it was just a waste of time and that (Moore) never should have been charged.”[50]

One way in which courts have sought to limit the scope of the statute is to hold that consentrequired of all involved parties by the statutecan be implied.[51] One such case was People v. Ceja, in which the court held that when a person has been made aware that a conversation is being documented and continues having the conversation, their consent could be implied.[52] Thought not broad enough to exclude all recordings made of police officers, this exception does give the courts one way to avoid prosecution if the recording is made openly.

Citizens rights groups have also sought to make a change. In August of 2010, the American Civil Liberties Unions (ACLU) filed a complaint against the Cook County State’s Attorney challenging the constitutionality of the Illinois Eavesdropping Act.[53] The ACLU is a non-profit organization with more than 20,000 members; its asserted mission is to defend and expand certain rights under federal and state laws.[54] The ACLU claimed it was in the process of implementing a program in which they would record police officers in the line of duty and disseminate the recordings.[55] The District Court for the Northern District of Illinois dismissed the case for lack of standing; however, the U.S. Court of Appeals for the 7th Circuit is slated to hear the appeal in the near future.[56]

The Solution. Recordings of police officers are a valuable asset to citizens, police officers, and the courts. They provide a level of transparency that has been lacking for a long time. Both the First and the Fourth Amendment support this proposition. These recordings also provide an objective evidentiary base that partisan testimony cannot. Audiovisual recordings do not just show the good or the bad, they show it all. The Illinois Statute should be changed to provide a broad exception for those people recording the public activities of police officers. This exception would maintain privacy for individuals as was intended by the statute but will prevent citizens from being prosecuted for recording or publishing this valuable information.

The right to privacy, as interpreted by the court, is intended to protect the privacy rights of individuals.[57] In Katz v. United States, the Warren Court held that individuals possessed a personal privacy right in their conversations.[58] The legacy of Katz is the concurring opinion by Justice Harlan, which established a two-prong test for protection of private conversations.[59] The test first requires that a person exhibit a subjective expectation of privacy and, second, that the expectation is one that society is prepared to recognize as “reasonable.”[60] Most state courts deny this right to police officers in doing their public duty.[61] Illinois’ law, however, erroneously grants privacy rights to police officers doing their public duty.[62]

Under the Katz test, the officer must first exhibit an actual expectation of privacy. While this clearly is not possible in open recording situations like the Beardsley case, it might be possible in situations involving secret recordings. That hurdle cleared, however, one must ask whether a police officer’s expectation that his public acts will be private is a reasonable one? By any stretch of the imagination, it is not. Most interactions between police officers and the public already lack privacy protections.[63] “There's nothing private about a police officer doing his duties on the public way,” said Harvey Grossman, legal director for the ACLU of Illinois.[64] “The way that the police conduct themselves is a matter of public importance.”[65]

Aside from the fact that police officers lack a reasonable right to privacy in their public communications, there is also a First Amendment constitutional right for individuals to engage in recording those communications.[66] The right to receive information about public officials has been deemed fundamental and is necessary to inform the public,[67] thus those people who choose to disseminate that information should be protected from prosecution.

Beyond the constitutional principles, there are also policy arguments that support an exception for recording police officers.[68] The primary policy argument for the exception is a promotion of evidentiary support. With cell phone cameras in every pocket, criminal trials are now using audio and visual evidence more and more often.[69] This audiovisual evidence can help prevent wrongful convictions and endless appeals; however, under the Illinois statute, this evidence could be suppressed.[70] Videos of police interactions can also provide ample evidentiary support to ease judicial effort at determining when constitutional rights have been violated. This might be a scary alternative to police officers if violations frequently occur, but, if violations aren’t occurring, then the exception should be promoted by police officers. Pat Camden, a spokesman for the Fraternal Order of Police in Chicago, said the union supports the law because it prevents people from making frivolous accusations against officers by recording them and then releasing pieces of the recording without context.[71] The credibility or lack of credibility of the evidence should be for a jury to decide not used as justification for a criminal charge. The evidence should not be used as a way to punish those trying to furnish a more objective viewpoint. When the stories of a citizen and a police officer collide, the officer's side of the story is often given deference. Recordings such as that made by Ms. Moore, offer citizens a way to preserve and present the real story.[72] The bottom line is that video footage of police officers provides an objective evidentiary base that testimony from both officers and citizens cannot.

Conclusion. In order to promote justice and prevent invasions of privacy, a broad exception should be created to the Illinois Eavesdropping Act for recording police officers in their public duty. The statute would still do its job of protecting privacy as is intended, but the exception would help avoid both the constitutional and policy problems of the current broad inclusion. The ability of citizens to document public officials performing their public obligations will also offer the kind of public transparency that is embodied in the Constitution. There is a value to allowing citizens to perform the basic check on police work that is allowed by video and sound recording police interactions.
As Illinois is the only state where the law clearly prohibits citizens from recording police officers, if the Supreme Court decides the issue of whether recording a police officer is a protected act the case will likely come from Illinois. If the legislature acts now, it will save the court the trouble.

[1] 720 Ill. Comp. Stat. 5/14-4(b) (2008).
[2] Jason Meisner & Ryan Haggerty, Woman Who Recorded Cops Acquitted of Felony Eavesdropping Charges, Chi. Trib., August 25, 2011,
[3] Id.
[4] Id.
[5] Radley Balko, Chicago State's Attorney Lets Bad Cops Slide, Prosecutes Citizens Who Record Them, Huffington Post, August 8, 2011,
[6] Id.
[7] See 720 Ill. Comp. Stat. 5/14-1(d) (2008).
[8] 720 Ill. Comp. Stat. 5/14-4(b) (2008).
[9] See id. Most other courts deciding the question have excluded police officers. See, e.g., Angel v. Williams, 12 F.3d 786, 790 (8th Cir. 1993); Gunderman v. Commonwealth Unemployment Comp. Review Bd., 505 A.2d 1112 (Pa. Commw. Ct. 1986); State v. Flora, 845 P.2d 1355, 1357-58 (Wash. Ct. App. 1992). As long as a person is not physically interfering with a police officer’s duties, it is legal to record the officer in every state but Massachusetts and Illinois. Balko, supra note 5. According to the ACLU, laws in Massachusetts and Oregon are similarly strict but not as broad. Meisner, supra note 2.
[10] Balko, supra note 5.
[11] Meisner, supra note 2.
[12] Id.
[13] See id.
[14] See Complaint at 9, American Civil Liberties Union of Illinois v. Alvarez, No. 10 C 05235, 2010 WL 4386868 (N.D. Ill. 2010).
[15] See Complaint at 9-10, American Civil Liberties Union of Illinois v. Alvarez, No. 10 C 05235, 2010 WL 4386868.
[16] See People v. Ceja, 204 Ill. 2d 332, 789 N.E.2d 1228 (Ill. 2003); American Civil Liberties Union of Illinois v. Alvarez, No. 10 C 5235, 2010 WL 4386868 (N.D. Ill. Oct. 28, 2010); Meisner, supra note 2.
[17] Jesse Harlan Alderman, Police Privacy in the iPhone Era?: The Need for Safeguards in State Wiretapping Statutes to Preserve the Civilians Right to Record Public Police Activity, 9 First Amend. L. Rev. 487, 500 (2011).
[18] 720 Ill. Comp. Stat. 5/14-4(b) (2008).
[19] See id.
[20] Alderman, supra note 17, at 488.
[21] See 720 Ill. Comp. Stat. 5/14-1(d) (2008).
[22] 720 Ill. Comp. Stat. 5/14-2(a) (2008). 
[23] Alderman, supra note 17, at 488.
[24] 720 Ill. Comp. Stat. 5/14-4(b) (2008). 
[25] Alderman, supra note 17, at 502.
[26] See People v. Beardsley, 115 Ill. 2d 47, 503 N.E.2d 346 (Ill. 1986).
[27] See id. at 53, 503 N.E.2d at 349-50.
[28] Id. at 58, 503 N.E.2d at 352.
[29] Id. at 48, 503 N.E.2d at 347.
[30] Id. at 49.
[31] Beardsley, 115 Ill. 2d at 49, 503 N.E.2d at 347.
[32] Id.
[33] Id.
[34] Id.
[35] Id.
[36] Beardsley, 115 Ill. 2d at 43, 503 N.E.2d at 349.
[37] Id. at 43, 503 N.E.2d at 349-50.
[38] See id.
[39] See id. at 50, 503 N.E.2d at 354-55.
[40] See 720 Ill. Comp. Stat. 5/14-1(d) (2008) (emphasis added).
[41] 720 Ill. Comp. Stat. 5/14-1(d) (2008).
[42] See Complaint at 7, American Civil Liberties Union of Illinois v. Alvarez, No. 10 C 05235, 2010 WL 4386868.
[43] 720 Ill. Comp. Stat. 5/14-1(d) (2008).
[44] See People v. Ceja, 204 Ill.2d 332, 789 N.E.2d 1228 (Ill. 2003); American Civil Liberties Union of Illinois v. Alvarez, No. 10 C 5235, 2010 WL 4386868; Meisner, supra note 2.
[45] Meisner, supra note 2.
[46] 720 Ill. Comp. Stat. 5/14-3(i) (2008); Meisner, supra note 2.
[47] Meisner, supra note 2.
[48] Id.
[49] Id.
[50] Id.
[51] See, e.g., People v. Ceja, 204 Ill. 2d 332, 789 N.E.2d 1228 (Ill. 2003); Plock v. Board of Education of Freeport School District, 396 Ill. App. 3d 960, 920 N.E.2D 1087 (2d Dist. 2009); Hurst v. Board of Fire and Police Commission, No. 4–10–0964, 2011 Ill. App. 100, 952 N.E.2d 1246 (4th Dist. 2011).
[52] Ceja, 204 Ill. 2d at 350, 789 N.E.2d at 1241. Implied consent is inferred from the surrounding circumstances indicating that the party knowingly agreed to the surveillance. Id. at 349-50, 789 N.E.2d at 1241.
[53] See Complaint at 1, American Civil Liberties Union of Illinois v. Alvarez, No. 10 C 05235, 2010 WL 4386868.
[54] American Civil Liberties Union of Illinois v. Alvarez, No.10 C 5235, 2010 WL 4386868, at *1 (N.D. Ill. Oct. 28, 2010).
[55] Complaint at 2, American Civil Liberties Union of Illinois v. Alvarez, No. 10 C 5235, 2010 WL 4386868.
[56]    See, Brief of Plaintiff-Appellant, American Civil Liberties Union of Illinois v. Alvarez, No. 11-1286 (7th Cir. 4/15/2011).
[57] See, e.g., Olmstead v. United States, 277 U.S. 438 (1928); Griswold v. Connecticut, 381 U.S. 479 (1965); Roe v. Wade, 410 U.S. 113 (1973).
[58] Katz v. United States, 389 U.S. 347, 351-53 (1967).
[59] Id. at 361.
[60] Id.
[61] Alderman, supra note 17, at 488.
[62] 720 Ill. Comp. Stat. 5/14-4(b) (2008). 
[63] See, e.g., Berkemer v. McCarty, 468 U.S. 420, 438 (1984) (reasoning that the typical traffic stop is public to some degree).
[64] Meisner, supra note 2.
[65] Id.
[66] Alderman, supra note 17, at 519.
[67] See Stanley v. Georgia, 394 U.S. 557, 564 (1969) (reasoning that the Constitution protects a right to receive information).
[68] Alderman, supra note 17, at 525.
[69] Id. at 526.
[70] Id.
[71] Meisner, supra note 2.
[72] Balko, supra note 5.

Justin Byrd received his B.A. in Political Science from Southern Illinois University at Edwardsville in May 2008. He expects his J.D. from the Northern Illinois University College of Law, J.D. in May 2012. Mr. Byrd acts as a Notes and Comments Editor for the Northern Illinois University Law Review.
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