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posted on 5/3/19

In February 2018, Illinois middle school student Paul Boron used an audio recorder on his cell phone to record a conversation between himself, his principal, and his assistant principal. After 10 minutes of recording the conversation, Boron told the school administrators that he was recording them. One of the administrators responded that Boron was committing a felony by recording them. The state of Illinois later charged Boron with eavesdropping, a class 4 felony. In Illinois, a Class 4 felony is a serious charge requiring a one to three-year jail sentence if convicted.

The New Illinois Eavesdropping Law

In 2014, the Illinois Supreme Court struck down Illinois’ previous eavesdropping law that required all-party consent when recording a conversation, stating that the law violated the First Amendment rights of Illinois citizens by criminalizing a “wide range of innocent conduct.”

In response to that 2014 Illinois Supreme Court decision, the legislature passed a new eavesdropping law that allowed residents to record police interactions without obtaining consent from every party being recorded. However, the requirement to obtain consent from all the parties if police are not involved is still a command of the eavesdropping law in Illinois.

One aspect of the new Illinois eavesdropping law prohibits someone from recording any private conversation in which at least one person in the conversation has a “reasonable expectation of privacy” without the consent of all parties being recorded. The new law defines a private conversation as “oral communication between [two] or more persons.”

When Does Someone Have a Reasonable Expectation of Privacy?

The short answer is we do not yet know what a “reasonable expectation of privacy” means in terms of the new eavesdropping law. Representative Elaine Nekritz, one of the law’s sponsors stated that “we’ll know it when we see it” when asked about when people have a reasonable expectation of privacy in conversations.

Wayne Giampietro, former president of the First Amendment Lawyers Association, headquartered in Illinois, argues that principals do not have a reasonable expectation of privacy when interacting with students, who are essentially the public. However, Giampierto fails to take into account that in any discipline, school administrators will be discussing not only the child being disciplined, but other students in the school as well. Students who may be subject to 504 or IEP plans. Federal student privacy laws are quite strict. Under 20 U.S.C. Section 1232, school officials are not allowed to discuss ANY student or allow their information to be disseminated publicly. An unauthorized recording by a student presents a very real possibility that private information protected by federal law will be disseminated in violation of the law and no child should be stigmatized because of their disability because of a publication of an unauthorized recording.

If an Illinois resident records a conversation without every other person’s consent thinking that none of the parties have a reasonable expectation of privacy and a court later determines that one party did have a reasonable exception of privacy, the person recording the conversation could face a class 4 felony conviction, as happened to Boron. We do not yet have a legal factor test or bright line test to determine when someone has a reasonable expectation of privacy in a conversation, but common sense should govern your actions. Educator – student, doctor – patient, lawyer – client, are just some of the examples of what one would expect to have a reasonable expectation of privacy.

We do know with certainty that Illinois state prosecutors are enforcing the new eavesdropping law vigorously. It may be wise for Illinois residents to use extreme caution when recording a conversation until a court rules on the constitutionality of the new law. Additionally, you can be civilly liable for violating the statute.

Has your child been charged for recording a conversation at his school? Have you been charged under Illinois’ Eavesdropping statute or are your concerned you may be charged under the statute? We recommend that you speak with an experienced Illinois criminal defense attorney as soon as possible. Contact Glasgow & Olsson today to set up your consultation.

(image courtesy of Neonbrand)