By Courtney Elliott, Albany Government Law Review
In recent years, courts have had to examine wiretap statutes in relation to recording law enforcement officers during the performance of their job duties. Most Americans now carry at least one mobile device capable of recording audio and video with the simple click of a button. Several commentators have observed that it is now common for citizens to use video cameras to document daily life, as well as police activity. On November 26, 2012, the United States Supreme Court denied certiorari in the case of Alvarez v. ACLU of Illinois, leaving in place a federal appeals court’s injunction against an Illinois anti-eavesdropping law which criminalizes audio recording of part or all of a conversation unless all parties involved agree to the recording.
The Illinois Eavesdropping Act, enacted in 1961, makes recording law enforcement officers a Class 1 felony, punishable by up to fifteen years in prison. A Class 1 felony is also used for second-degree murders. Under the statute, “[a] person commits eavesdropping when he . . . [k]nowingly and intentionally uses an eavesdropping device for the purpose of hearing or recording all or any part of any conversation . . . unless he does so . . . with the consent of all of the parties to such conversation[.]” Further, the Act defines “conversation” as “any oral communication between [two] 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.”
The Illinois Eavesdropping Act is one of the most draconian laws in the country with respect to “surreptitious audio or video recording of public or private conversations.” Illinois is one of just a handful of states where all parties to a conversation must give their consent to a recording. Additionally, although most eavesdropping statutes are written or have been interpreted by the courts to exclude on-duty law enforcement officers, the Act expressly confers a right of privacy to these public servants performing their work duties in public. In fact, the Illinois legislature amended the statute to eliminate the section of the statute that required individuals being recorded to prove a reasonable expectation of privacy. The Illinois legislature also eliminated a one-party consent exception that “worked to effectively exclude police officers from coverage.”
In recent years, this controversial law has come under fire due to a string of prosecutions against citizens for the mere act of recording police activity in a public place. For example, in August 2011, a Cook County jury acquitted Tiawanda Moore, a young woman who had been charged with recording Chicago police internal affairs investigators she felt were trying to persuade her not to file a sexual harassment complaint against a patrol officer. Moore stated that before she was arrested, she did not even know that there was a law in Illinois that prohibited eavesdropping—she just wanted to document what had happened to her.
In spite of some degree of public outrage regarding cases such as the one mentioned above, proponents of the law contend that there is support for the Act, rooted primarily in the right to privacy. In a hearing before the Seventh Circuit of Appeals, Judge Richard Posner expressed his concerns regarding recording law enforcement officers, stating: “[y]es, it’s a bad thing. There is such thing as privacy.” In addition, as noted by Corinne Koopman for the Public Interest Law Reporter, “[s]ome police officers . . . believe that the [anti-eavesdropping law] allows them to do their job safely and effectively.” Sheriff Bennie Vick of Williamson County, Illinois, highlighted this concern by stating: “[s]omeone coming up shoving a camera in your face … I can see how that would endanger lives.” However, police Superintendent Garry McCarthy, who runs the largest law enforcement agency in Cook County, disagrees with this notion and has stated that he does not oppose permitting civilians to audio record police officers.
Despite this limited support for the Illinois Eavesdropping Act, numerous opponents of the law have given sound reasons why it should be repealed. Many critics of the law argue, for example, that the ability to record police officers is a First Amendment right that helps guard against police abuse. As Time Magazine reasoned, if the police are doing their jobs properly, they should have nothing to worry about.
The American Civil Liberties Union (ACLU) of Illinois filed a civil complaint in 2010, naming Cook County State’s Attorney Anita Alvarez as a defendant, and alleging that the Illinois Eavesdropping Act was unconstitutional. Justin Byrd of the Northern Illinois University College of Law notes that at the time of the lawsuit, the ACLU was in the process of implementing a police accountability program, in which “they would record police officers in the line of duty and disseminate the recordings.” Under the program, the ACLU would record police officers, without the officers’ consent, provided that the officers are “(1) performing public duties, (2) in public places, (3) speaking at a volume ‘audible to the human ear,’ and (4) ‘the manner of recording is otherwise lawful.’” Also, the ACLU planned to release the recordings they obtained to the public and use them to “petition the government for a redress of grievances.” Therefore, prior to implementing their program, the ACLU filed its lawsuit to enjoin the Cook County State’s Attorney from future prosecution of ACLU members who participated in the program. Additionally, the ACLU sought a declaratory judgment that the statute was unconstitutional on the grounds that it violated its members’ rights under the First Amendment of the United States Constitution.
On May 8, 2012, the Seventh U.S. Circuit Court of Appeals dealt a significant blow to the Illinois Eavesdropping statute, ruling that the law is “likely unconstitutional” as applied to individuals who record police officers doing their jobs in public, and granting the ACLU’s request for a preliminary injunction. Calling the statute “the broadest of its kind,” the Seventh Circuit concluded that the law restricts far more speech than necessary to protect legitimate privacy interests and that it likely violates the First Amendment’s free-speech and free-press guarantees. Further, the court rejected the State’s Attorney’s reliance on the government’s interest in protecting conversational privacy, reasoning that it is not implicated when police officers are performing their duties in public places and engaging in public communications audible to individuals who witness the events.
In sum, the Seventh Circuit held that the eavesdropping law could not be enforced specifically against the ACLU of Illinois’ members when they record public Chicago-area police activity as part of the organization’s efforts to document the conduct of law enforcement officials. Thus, the Seventh Circuit’s ruling is fairly narrow because it allows only one local civil liberties group to record public interactions with police for its particular “police accountability program.” However, it is apparent that the case has the potential to establish a legal precedent in favor of other individuals and groups that wish to serve the public interest by recording police conduct.
In response to the Supreme Court’s decision to let the Seventh Circuit’s ruling stand, the office of Cook County State’s Attorney Anita Alvarez has stated: “[w]e respect and accept the Court’s decision in this matter and we are continuing to review all legal options as the case proceeds in U.S. district court.” On the other hand, the ACLU welcomed the Supreme Court’s refusal to disturb the lower court’s ruling. As stated by Harvey Grossman, the Legal Director of the ACLU of Illinois, “[w]e are hopeful that we are moving closer to a day when no one in Illinois will risk prosecution when they audio record public officials performing their duties. Empowering individuals and organizations in this fashion will ensure additional transparency and oversight of public officials across the state.”
 See Andrew v. Jezic, Frank Molony, & William E. Nolan, Videotaping Police in the Performance of Their Duties, Md. Law of Confessions, ch. 32:4 (2012).
 See Id.
 679 F.3d 583 (7th Cir. 2012), cert. denied, 133 S.Ct. 651 (2012).
 See Alvarez, 679 F.3d at 587 (discussing Illinois statute); see also Tal Kopan, Supreme Court Won’t Hear Police Recording Case, Josh Gerstein Blog (Nov. 26, 2012, 11:39 AM), http://www.politico.com/blogs/under-the-radar/2012/11/supreme-court-wont-hear-police-recording-case-150290.html.
 720 Ill. Comp. Stat. Ann. 5/14-4(b) (2012); see, e.g., Mark Guarino, Can People Record Police Officers? Illinois Ban Gets No Help at Supreme Court, Christian Sci. Monitor, Nov. 26, 2012, http://www.csmonitor.com/USA/Justice/2012/1126/Can-people-record-police-officers-Illinois-ban-gets-no-help-at-Supreme-Court.
 See 730 Ill. Comp. Stat. Ann. 5/5-4.5-30(a) (2010); see also Stephanie Claiborne, Is it Justice or a Crime to Record the Police?: A Look at the Illinois Eavesdropping Statute and Its Application, 45 J. Marshall L. Rev. 485, 491 (2012).
 720 Ill. Comp. Stat. Ann. 5/14-2(a).
 720 Ill. Comp. Stat. Ann. 5/14-1(d).
 Guarino, supra note 6.
 Justin Byrd, A Public Servant Doing Public Work in Public Is…Private? Illinois Eavesdropping Act Under Fire: It’s Time for a Change, 24 DCBA Brief 38, 39 (2012).
 Marianne F. Kies, Policing the Police: Freedom of the Press, the Right to Privacy, and Civilian Recordings of Police Activity, 80 Geo. Wash. L. Rev. 274, 287 (2011).
 Jason Meisner, Supreme Court Rejects Plea to Ban Taping of Police in Illinois, Chicago Tribune, Nov. 27, 2012, available at http://articles.chicagotribune.com/2012-11-26/news/chi-supreme-court-rejects-plea-to-prohibit-taping-of-police-20121126_1_cook-and-crawford-counties-police-officers-enforcement; see also Kies, supra note 15, at 288.
 Kies, supra note 15, at 288 (discussing Tiawanda Moore’s case).
 Corinne Koopman, The Illinois Eavesdropping Statute: Constitutional Rights Versus Felony Charges, 17 Pub. Int. L. Rep. 101, 102 (2012).
 Koopman, supra note 18, at 103.
 Court Issues Order Barring Controversial Enforcement of Illinois Eavesdropping Law, PR Newswire (July 9, 2012), http://www.prnewswire.com/news-releases/court-issues-order-barring-controversial-enforcement-of-illinois-eavesdropping-law-161797155.html.
 Koopman, supra note 18, at 102–04.
 Michael Tarm, Another Blow for State’s Anti-Eavesdropping Law, Assoc. Press (Nov. 26, 2012, 6:37 PM), http://bigstory.ap.org/article/court-rejects-plea-block-taping-police.
 Adam Cohen, Should Videotaping by Police Really Be a Crime?, Time (Aug 4, 2010), http://www.time.com/time/nation/article/0,8599,2008566,00.html.
 Byrd, supra note 12, at 42.
 Id; Alvarez, 679 F.3d at 586.
 Kies, supra note 15, at 288–89.
 Alvarez, 679 F.3d at 586.
 Claiborne, supra note 7, at 488; Alvarez, 679 F.3d at 586.
 Tarm, supra note 24; Alvarez, 679 F.3d at 605–06.
 Jonathan Stempel, Top Court Will Not Revisit Illinois Eavesdropping Law, Chi. Tribune News (Nov. 26, 2012), http://articles.chicagotribune.com/2012-11-26/news/sns-rt-us-usa-court-police-surveillancebre8ap16s-20121126_1_top-court-audio-recordings-police-officers; Alvarez, 679 F.3d at 586–7.
 Alvarez, 679 F.3d at 586.
 Amanda Simmons, Setting the Record Straight: a Legal Challenge to the Illinois Eavesdropping Act, News Media & The Law. (July 1, 2012), http://www.rcfp.org/browse-media-law-resources/news-media-law/news-media-and-law-summer-2012/setting-record-straight-leg.
 See id.
 Stempel, supra note 33.
 Tarm, supra note 24.