You may have heard by now that the Illinois Supreme Court declared the state's eavesdropping law unconstitutional.  The facts are straight forward.  A criminal defendant had a dispute with a Court Reporter over the accuracy of a prior court transcript,  When she called to demand that the transcript be corrected she was transferred to the reporter's supervisor, and she surreptitiously recorded three telephone conversations with the supervisor and later put it on her web site.  Illinios is an "all party state".  The defendant was charged to violating the eavesdropping law and challenged the constitutionality of that law.  
    The case is of interest to the alarm industry because you sometimes listen in to protected areas using audio as an activation of event , listen in for event verification once a signal is received or have two way audio capability in a premises.  I've often opined that the eavesdropping statutes would not likely apply when there is no expectation of privacy.  This is precisely what the Illinois Court found. The Standard Form Contracts authorize recording audio and provide that the data is the property of the alarm company.  
    Here a few excerpts from the decision:
    "The State and defendant agree that the purpose of the eavesdropping statute is to protect conversational privacy. However, the statute as now written deems all conversations to be private and, thus, not subject to recording absent consent, even if the participants have no expectation of privacy. The State argues that the choice between a law that might be over-inclusive and one that might be under-inclusive is a policy matter for the legislature, not the courts.
  HN7 When that policy criminalizes a wide range of innocent conduct, however, it cannot be sustained. The statute criminalizes the recording of conversations that cannot be deemed private: a loud argument on the street, a political debate on a college quad, yelling fans at an athletic event, or any conversation loud enough that the speakers should expect to be heard by others. None of these examples implicate privacy interests, yet the statute makes it   a felony to audio record each one. Judged in terms of the legislative purpose of protecting conversational privacy, the statute's scope is simply too broad. Clark, 2014 IL 115776, ¶¶ 22-23.
   Further, even when the recorded conversation is held in private, the statute does not distinguish between open and surreptitious recording. The statute prohibits any recording of a conversation absent the consent of all parties. Thus, rather than knowing that he or she can proceed legally by openly recording a conversation so that all parties are aware of the presence of an operating recording device, the individual must risk being charged with a violation of the statute and hope that the trier of fact will find implied consent. See People v. Ceja, 204 Ill. 2d 332, 349-50, 789 N.E.2d 1228, 273 Ill. Dec. 796 (2003) (holding that consent under the eavesdropping statute may be express or implied; implied consent is consent in fact, inferred from the surrounding circumstances that indicate the individual knowingly agreed to the recording). Clark, 2014 IL 115776, ¶ 22.
    We conclude as we did in Clark, 2014 IL 115776, that HN8 the recording provision of the eavesdropping statute (720 ILCS 5/14-2(a)(1) (West 2008)), burdens substantially more   speech than is necessary to serve a legitimate state interest in protecting conversational privacy. Thus, it does not survive intermediate scrutiny. We hold that the recording provision is unconstitutional on its face because a substantial number of its applications violate the first amendment. See United States v. Stevens, 559 U.S. 460, 473, 130 S. Ct. 1577, 176 L. Ed. 2d 435 (2010) (a statute may be invalidated as overbroad if a substantial number of its applications are unconstitutional when judged in relation to the statute's legitimate sweep)."    

 TO SUBMIT QUESTIONS OR COMMENTS REPLY TO THIS EMAIL OR EMAIL Ken@Kirschenbaumesq.com.  Most comments and questions get circulated.


Speaking Engagements



SentryNet's 19th Annual Dealer Conference.  April 22 - 24, 2014 at Harrah's in Tunica, MS.  register at http://www.sentrycon.us or call Peggy at 800-932-3304 for more information.   www.sentrynet.com


Northeast Security & Systems Contractors Expo.  Thursday, May 22, 2014 10 am to 5 PM at  Royal Plaza Trade Center,  Marlborough, MA.  registration  https://www.expotracshows.com/neacc/2014/  Presentation on Alarm Law issues and Q&A will be at 2 PM.  For more info contact Gary Spaulding, NEACC President 207-384-2420 gary@spauldingsecurity.com

Alabama Alarm Association.  AAA's Fall Meeting and Trade Show - October 21, 2014 from 3 to 5 PM at DoubleTree Hotel 808 South 20th Street Birmingham, AL 35205  for more info contact AAA Executive Director: director@alabamaalarm.org  (205) 933-9000 


Electronic Security Summit for 2014.  October 22-24, 2014  at the landmark Broadmoor Hotel. Colorado Springs, CO.  For more information contact Alexander J. Quirin, CEO & Managing Partner, Advisory Summit Providers, LLC.,  (786) 999-9738    alex.quirin@aspsummits.com    www.aspsummits.com