In a historic ruling on Thursday, the Illinois Supreme Court struck down the state's 50-year-old eavesdropping statute, ruling the law unconstitutional. This law, enacted in 1961, made recording any conversation without consent a felony. While it likely began as a rightful protection of individual privacy, given today's prevalence of hand held technology, the law could imprison virtually any one who captured a conversation in public on their smart phone. The Supreme Court therefore deemed the law a violation of first amendment rights to free speech and due process.
Defendants in two cases had their convictions for eavesdropping overturned as a result of the ruling. In one, a man was charged for recording court proceedings, which he was doing because there was no court reporter present to create an account of the events. In the other, a woman recorded phone conversations with a court employee in her effort to correct an inaccurate court transcript. In either scenario, the defendants were simply documenting public events, but would have faced sentences similar to those given to violent offenders had their appeals not been won.
The Supreme Court's decision that the law violated the first amendment was largely based on the overbreadth doctrine—the broadness of the law made it such that many of its applications were not constitutional. That is, it is true that an individual should be able to have a private conversation in their home, or behind closed doors, without being subject to eavesdropping. On the other hand, conversation with a public official who is doing his or her job is not meant to be private or secret, so recording such an exchange ought not to be considered eavesdropping at all. Furthermore, as the Chicago Tribune's Eric M. Johnson puts it in his report of the decision, "a key purpose of [the First Amendment] is to protect free discussion of the workings of government". If citizens are not permitted to create a record of exchanges between themselves and government employees, the ability to monitor the effectiveness and fairness of government entities is compromised.
It is clear that the eavesdropping law will need to be rewritten in order to prevent innocent individuals from being criminalized. As the Tribune reports, "the Supreme Court ruling means the state legislature may need to draft a law that will allow people to make certain public recordings while also protecting legitimately private conversations." This will be a difficult task, especially as the nature of privacy itself has shifted in this age of ubiquitous technology and social media; but, that shift is undeniable and it is essential that the law meet the demands of the society that it governs.