Part of Illinois’ eavesdropping law may be on its way to being unenforceable. Illinois’ eavesdropping law requires two-party consent for recording, but several courts have ruled that with respect to police, citizens have a right to record them in public in performance of their duties and speaking at a level that is audible to passersby.
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On Monday, the U.S. Supreme Court declined to hear a further appeal. The federal district court will now be asked to issue a permanent injunction against enforcement. Harvey Grossman, legal director of the ACLU of Illinois, says the case strictly speaking applies only to the ACLU recording police, but an injunction probably would protect anyone. “I would say that a reasonably prudent prosecutor wouldn't prosecute somebody else just because they don’t work for the ACLU for the very same conduct they’ve been told in unconstitutional,” he said.
The ACLU filed suit to challenge the law, but asked for an injunction against enforcement because it didn’t wish to subject an ACLU employee to 15 years in prison if it didn’t win the case. The state’s attorney of Cook County sought to have the law upheld. State lawmakers attempted to revise the law this year, but failed.