In two landmark rulings that may prompt further examination of how our laws identify and protect privacy interests, the Illinois Supreme Court has found unconstitutional Illinois’ long-standing electronic eavesdropping act.
The act is one of about a dozen so-called “two-party consent” eavesdropping statutes, meaning that they permit electronic recording of conversations only when all parties consent to the recording. Several other influential states, including California, New York, Pennsylvania, Massachusetts, and Maryland, have similar laws.
The two cases addressed by the Illinois court highlighted a major problem with strict-liability two-party consent eavesdropping laws — they criminalize citizen recordings of their interactions with police and other government officials. In one case, People v. Clark, the defendant recorded a court proceeding in which he took part. In the other, People v. Melongo, the defendant recorded telephone conversations with a court official as she investigated an erroneous court record in a case against her.
Both challengers attacked the law on First Amendment grounds — whether it gave clear and fair warning of its effect on expressive conduct (vagueness), and whether it chilled protected speech (overbreadth). The state defended chiefly on the grounds that the statute was content-neutral, because it applied to all recordings that lacked two-party consent.
The court found that even assuming content neutrality, the eavesdropping law was unconstitutional. Applying the intermediate scrutiny test applicable to content-neutral laws that affect expression, it found that the law reached too far. It was far broader than necessary to fulfill the stated purpose of protecting privacy, since it prohibited recordings in situations (such as open courtroom proceedings) where the participants had no reasonable expectation of privacy. That overbreadth, combined with the criminal penalties of the statute, moreover, inhibited even recordings that might be justified because of the implied consent of the parties.
The statute thus failed primarily because of its overbreadth. The court acknowledged that individuals have a valid interest in the privacy of their communications. But the eavesdropping act swept far broader. The court pointed out that it prohibited recording of even political debates in a public park, public interactions between citizens and police officers, and any public conversation loud enough to be overhead by others. “None of these examples implicate privacy interests, and yet the statute makes it a felony to audio record each one,” the court pointed out.
The court acknowledged a legitimate core purpose of eavesdropping acts, to protect “conversational privacy,” and it distinguished the current overbroad act from an earlier version, which was limited to situations where a reasonable expectation of privacy existed. Thus, in response to these decisions, the Illinois legislature could reenact a narrower eavesdropping act, with such an exception included again. Alternatively, the legislature could avoid the inherent problems with criminal laws in this area, and defer to the common law torts that already protect citizens from intrusions into areas where they have reasonable expectations of privacy.
On the Internet and around the world
The court’s opinions may also open up the policy debate on whether such acts really make sense, particularly in today’s world of ubiquitous recording devices. The court noted that conversations are never truly private, and that the use of recordings may entail many benefits.
The court stated: “If another person overhears what we say, we cannot control to whom that person may repeat what we said. That person may write down what we say and publish it, and this is not a violation of the eavesdropping statute. … The person taking notes may misquote us or misrepresent what we said, but an audio recording is the best evidence of our words. … Understandably, many people do not want their voices broadcast to others or on the Internet to be heard around the world. But, to a certain extent this is beyond our control, given the ubiquity of devices like smartphones, with their video and audio recording capabilities and the ability to post such recordings instantly to the Internet.”
In one notable case last year, a former Huffington Post reporter riding on a train overheard former NSA director Michael Hayden’s “off the record” phone conversations. He didn’t make an audio recording of the conversation, but did provide a tweet-by-tweet recap of Hayden’s remarks. The reporter could easily have recorded audio or video and posted it. Incidents like this underscore the realities that the court noted, including the possibility of conversations to be described or posted on the Internet.
In a different vein, David Brin, a prescient privacy analyst, has argued that the issue today is not whether recordings are made, but who has access to the recordings. If cameras convey images of street scenes only to monitors in police stations, the scene is truly Orwellian. If all citizens, however, have access to views of police interactions with citizens, that use of recordings supports transparency and freedom, Brin argues.
Like almost all privacy issues, electronic recording is a two-sided issue, as these decisions illustrate. Protecting someone’s privacy may inhibit another person’s right to use information. The tension between these two interests is usually resolved by limiting privacy rights to whatever is considered to fall within a reasonable person’s “reasonable expectation of privacy.” Problems arise where that tension is upset, such as occurred with the overbroad Illinois two-party-consent eavesdropping law.
Illinois may not yet be ready for Brin’s image of “the transparent society,” but the Illinois Supreme Court’s decision at least injects transparency concerns into the forefront of the debate, and demonstrates that a myopic and overbroad focus on protecting some citizens’ “privacy” can inhibit the rights of other citizens and draw a dark curtain over the openness that is necessary for a fair society.
Mark Sableman is a partner in Thompson Coburn’s Intellectual Property group. He is the editorial director of Internet Law Twists & Turns. You can find Mark on Twitter, and reach him at (314) 552-6103 or firstname.lastname@example.org.