7th Circuit suggests Illinois eavesdropping statute may violate the First Amendment

In ACLU of Illinois v. Alvarez, 2012 U.S. App. LEXIS 9303 (7th Cir. 2012), the Seventh Circuit suggested that an Illinois statute banning the recording of police conversations without consent is likely to violate the First Amendment. Though it's not directly a cybercrime issue, the case could certainly have effects on privacy issues and technology use.

The law makes "it a crime to use 'an eavesdropping device to hear or record all or part of any oral conversation without the consent of any party thereto.'" If a person records communications involving police activity, imprisonment of 15 years is possible. The ACLU argued that the statute violates the First Amendment as people should be able to record police activity. The state, however, argued "that openly recording what police officers say while performing their duties in traditional public fora—streets, sidewalks, plazas, and parks—is wholly unprotected by the First Amendment."

The Seventh Circuit, in an opinion by Judge Sykes, held that the statute "restricts a medium of expression ... and thus an integral step in the speech process. As applied here, it interferes with the gathering and dissemination of information about government officials performing their duties in public." Further, the statute is not subject to strict scrutiny, but "the statute does not serve the important governmental interest of protecting conversational privacy; applying the statute in the circumstances alleged here is likely unconstitutional."

As such, the denial of allowing the ACLU to amend their complaint is reversed, and a preliminary injuction was ordered, forbidding:

the State's Attorney from applying the Illinois eavesdropping statute against the ACLU and its employees or agents who openly audio record the audible communications of law-enforcement officers (or others whose communications are incidentally captured) when the officers are engaged in their official duties in public places; and conduct such further proceedings as are consistent with this opinion.

Judge Posner dissented.

Our ruling casts a shadow over electronic privacy statutes of other states as well, to the extent that they can be interpreted to require the consent of at least one party to a conversation to record it even though the conversation takes place that in a public place, if the conversation could nevertheless reasonably be thought private by the parties.... The constitutional right that the majority creates is likely to impair the ability of police both to extract information relevant to police duties and to communicate effectively with persons whom they speak with in the line of duty.

In January, an article from Slate discussed the effects of the Illinois eavesdropping statute.