of computer tampering got into a dispute with the court reporters as to whether or not they were accurately reporting what could hurt in court as a dispute became heated she became a gauge in telephone conversations with pam taylor the head court reporter for the official court reporter's a twenty six street and called her on three different instances and recorded those conversations in one of those conversations itching for ms taylor that she was recording the conversation did she ask her permission to do so or did she notified her that she intended to host the audi over and the transfer above the recordings on her website shortly thereafter after the matter was posted on a website ms mulago was charged with eavesdropping under six counts the manner proceeded to a trial at which her defense was that she did it purposely engage in the recording but with for the sole purpose of under the exemption in the eavesdropping statute that you are permitted to record through electronic means a conversation without notice to the other party if you believe if you recently believe that that person is committing an offense against you or a member of your family the jury was home the matter was transferred to a new judge it which point the defendant filed a pro se motion to declare the statute unconstitutional wherein she again asserted that the meaning of the manner of recording was done pursuant to the example in permitting it in cases where you believe that you have a crime being committed against the trial judge heard the matter took it under basements and in the interim the seventh circuit ruled in a case called a c l u versus alvarez that the eavesdropping statute is unconstitutional as applied to the recording of open recording  police officers speaking in a loud ot of a boy so they can be heard by others without amplification when they're engaging in their public duties the trial judge relying on the alvarez case as well as an earlier decision by another lvarez is very clear that it is a limited ruling to open recordings it is providing a right of recording public conversations in the open where the person with the recording device is seen and observed anyway in the seventh circuit makes it clear that they are now dressing in any way surreptitious recording they recognize that there may be issues associated with their positions recording but they aren't that they are discussing and are addressing it in the reason why was because the court said that in the situation of the police officer speaking loudly in public with another citizen or with a or with another police officer that those are not private conversations there is no expectation of privacy in any way when you speak loud enough for other people to hear you so you're saying that a telephone that is clearly the defense argument than any conversation with a public official is a public conversation but there can't be the case that's a policy question for the legislature the legislature has made a determination that telephone conversations are inherently private unless there's a consensus given to them in some way in what happened in this case is that there's taylor was sitting in her office when the phone rang and she answered the phone unwittingly being recorded by the defendant she had no opportunity to consent she had no reason to grant or refuse consent because she was never even informed of the past ability the circumstances of the phone call didn't in any way indicates that there would be in the sasabe of consent then how does the fact that the person being recorded conversational privacy is an important governmental interest the u s supreme court has said the same this court has said the same but looking at the statute part of how to factor into the statute well what the legislature has done is that it presumes that conversations are private example a street performer and a heckler a shouting match at a baseball game obviously someone taking a video of their phone or whatever would they be subject to this due to no your hon and intentionally record a conversation without the consent of the other parties for the purpose of recording their conversation so there are three mental state factors so let's stop you there i'm going to give all that is a given which is the baseball game of two people showing here this is a good fight brewing i'm going to record this and i'm going to put it on you tube we did it with meet the requirements of the statute with regard to the purpose of the recording is to specifically although there is not a spate of eavesdropping that charges coming up in situations like that because again nobody recognizes that those are considered to be private conversations and nobody would seem to have to ask consent for someone who is out at a baseball game screaming in another person in so consent is intended i believe under the statute in particular in this case under a telephone services reporting in a situation where there is some sort of expectation of privacy is the seventh circuit recognize legislature is intending to address then it would seem to violates substance of due process but if it is the harm if the if the conduct which is the harm that the legislature intended to address is precisely the harm which is identified as seemingly innocent conduct that becomes a policy question for the legislature to the side what is and what is not appropriate and so that's why in the hounds case in particular the decision as to whether now the child pornography statute was overly broad this court recognized it didn't cover enough of a risk of innocent conduct being fallen into it in this case the legislature's aside it within their authority that the eavesdropping statute covers all nonconsensual reporting in particular  telephone cases and because of their all the potentially innocent conduct that may or may not be addressed is directly related to the harm that the legislature was trying to address so unlike say the example in  the risk of the husband calling in to the to the car dealership to find out if his wife's car was ready to be picked up that was not the type of identity theft information that the legislature was trying to address and so there was clearly innocent conduct which was unexpected and unplanned for by the alleged which was falling under the under the statute it's not the same here at least with regards to telephone you know what we do with the definition of conversation in the state that says regardless of whether one or more of the perris in terms of their communication to be of a private nature well your honor i think that they actually helps explain the distinction between say implied consent in constructive consent in the seventh circuit decision the court makes court recognize that anybody here in the painting would know that the conversations being recorded but constructive consent is instead looking at the overall circumstance and say oh that person must have known must have consented and that's where the legislature in defining  conversation after the beardsley hearing cases went they made sure that we're not going to allow for constructive consent but they are going to permit the still consent of the implied or express consent and that's precisely what this legislature did what our legislature did after this court's decision in beardsley after its decision and harrington in particular after seeing justice for landis a dissenting hearing to know where he says that every telephone should be given a  warning label to be put on there that warning and what any time it's phone you may be recorded the legislature sought to ensure the conversational privacy they did it by requiring consent of all the parties that's exactly what happened in this case in regards to the telephone conversations that the defendant recorded because what she did was she called another person who had no reason to know that she was being recorded and made her own decision as to whether or not it was a public or private conversation and rather than allowing all the parties to make the determination to protect their own privacy interests the defendant here did it herself and that's the problem with with the defense argument that's the problem with the trial judge's ruling is that it negates the privacy rights of the other members of the conversation they have rights the legislature has the authority to define those privacy rights and protect those privacy rights even for government employees that's why i said it's a policy question for the legislature it's not a constitutional question for judah cation by th knowledge and what is specifically the unlawful use but i believe it's the next sentence where it says for the purpose of recording and it it's a recording without consent and there's a recording of a private conference recording of a conversation without consent and in this case i believe that the defendant has effectively pleather self out of court by specifically arguing that the reason why she engaged in this recording was knapp because she believes she had the authority under the first amendment or due process but instead because she was doing it to protect herself she knew that it was an unlawful recording but was relying on the staff for example to protect herself against a crime being committed against her so it i would respectfully respect respectfully request this court consider the particular factual allegations that occurred in this case because that was the defendant's defense at the trial that has been the defendant's basis for the motion in this case that is what happened in this case so then let me ask you this is it and it has applied officially to your honor that it's not really the obvious case specifically says that it isn't as applied well and judge sachs i believe did say it was facially but from a standpoint of the mental state from substantive due process in terms of whether or not there is an inherent right to record i don't believe that i think it's an as applied challenge but i'm not certain i can answer that in i don't believe that the trial judge here did a full analysis on that  and that's actually i believe one of the most important problems with this case is that the trial judge here essentially assumed that this was the same case is the seventh circuit decision but it is not an defense argument in their brief essentially is asking the seventh circuit case but it's not this case is a very different scenario this is a person sitting in an office taking up her telephone yes she's a government employee but she is not in any way engaging in a public conversation she still has the freedom to understanding as to what purcell use conduct it was trying to address there is no conduct which this eavesdropping statute is attempting to address other than the recording of nonconsensual conversations it  doesn't it only addresses that imagine all this court talk about a situation when it wasn't simply trying to misuse someone's identity there was no criminal aspect at all but in typical ordinary everyday interactions that people have in their families with their friends at work that was the problem as i understood it from edibles that it was far too broad it didn't address specifically the point it was trying to address it is that in the language of medical it addressed a significant amount of otherwise innocent conduct that was unintended by the legislature and i don't believe that's the case here but could this be your stance you had the technology here has made it more likely unconstitutional in the whole overbred situation within the legislatures authority was it a reasonable legislative call one that within their police power and do they have a reasonable means of achieving that goal certainly recognizing conversational privacy is a reasonable legislative goal every court has recognized that and because ensuring the consent of all parties is the best way of establishing the subjective can do subjective understanding of the parties it's the best way the most direct way of ensuring that their goal is reached so that's that's why i think it is distinct from medical because medical was not it didn't have the connection between the legislative goal and the outcome what they were doing and so if there are no further questions we would respectfully request that this court reversed the but the statutes language says otherwise on its face the eavesdropping statute says privacy is irrelevant a person cannot record a conversation regardless of whether the parties intended it to be private put another way a person is a criminal eavesdrop or even if she records without consent a conversation that all of the participants intended to share with the world around them the seventh circuit and alvarez said it best by legislating this broadly by making it a crime to audio record any conversation even those that are not private the state has severed the link between the eavesdropping the facts of this case this initial act don't matter under the over breath doctrine they also don't matter under the due process challenge that we bring that one up if we don't in the over breath on track we know that stevens for example stevens the defendant stevens was convicted at trial but even though he fell within the the language the elements of the statute this court's the supreme court and i say still struck that down under over breath grounds  moron go has admitted to what the facts have shown here is that she did record the conversation and that she did post them on her website but as the questions here have shown there is nothing about her defense a trial or any evidence or any stipulation she's made that show that she acted with the intent to invade anybody's privacy that's the problem that's what's missing here is that the statute doesn't require as a purpose that the defendant or an individual citizen invades somebodies privacy that's the purpose that's missing and this morongo has never said she acted with the purpose of invading somebody is privacy so even if we are concerned with the particular facts of this case there's nothing that happened below that somehow ties her hands and says she is not entitled to relief because of what happened in this i think it's important to say that under either the first amendment or under due process the specific facts of this case don't change the result case law makes clear that miss mulago can challenge the eavesdropping statute regardless of her particular conduct and it also makes clear that this court can strike down the law without considering her particular conduct so this is a facial challenge we have brought both a facial challenge and an as applied challenge because i also believe and we have argued here and i want to talk about the fact that these telephone conversations were not revive it conversations and therefore even if this court would like to say we're not striking down the entire statute we're only going to strike it down as applied to non private or public conversations mismo longo is still entitled to relief and here's why even if we go as applied the state has talked a lot in their brief and they want to try and make this about only telephone conversations there's not a constitutional right to sara fishley recorded telephone conversation there's no statute isn't just limited to telephone conversation it applies even to someone recording hecklers on the street or the i i call and response at a football game but with respect to telephone calls we all have this instinct right that a telephone call is private we think about calling a spouse calling a loved one and i get that intuitive feel we have but that intuitive feel doesn't answer the constitutional question and that's because public officials acting in their official capacities don't have the same rights of privacy and we talk about this we cite the husky case and the cassidy case those are illinois cases are cases based on federal cases based on illinois law and what those cases tell us is that a person performing official duties has no right of privacy as to information concerning his or her discharge of those duties mr taylor's a public official she called this mulago she initiated these phone conversations she is a member miss mongo was a member of the public but ms taylor's a public official was acting in her official capacity as the assistant director of the criminal division and she was calling to explain an official policies of her office on a matter of public concern this is how the court reporter's office works this is what happened in a public criminal case that makes this conversation not on private conversation in cassidy which is an illinois case that we cite the court held a public official performing a lot of a public service and discharging a public duty has no right to privacy against intrusion with reference to the gathering and dissemination of news concerning his discharge of those duties that's the case law on which we are relying to say that miss taylor in that conversation this or these three particular conversations talking to a member of the public in her official capacities and about a matter of public concern these are not private phone calls and as a result even in this court would like to say we're going to look at this as an as applied challenge and say the illinois you shopping statute is unconstitutional as applied to non private conversations miss mongo also is entitled to relief and the case against her should be dismissed now i will say that i don't believe that is the correct way to go in this case i think this should be struck down on its face because this court is entitle to interpret the statute in a way that limits its reach but it's not entitled to rewrite the statute and the problem that the legislature has created which is different than the statutes in all the other cases i not just to say you know take privacy out they have written in their definition of conversation this applies regardless of whether the parties or any party intended the conversation to be private i submit it's difficult to read that language as applying only to public or non private conversations it's a big problem with the breadth of this statute i'd like  to just also make sure we haven't talked at all about the publishing provisions and i just want to make clear that the publishing provision everything said about the recording provision is equally true about the publishing  that the recordings can't be used that information used or divulged is not limited to private conversations so any holding with respect to the recording provision also tunes the publishing provision there's been some discussion as well about consent and the state has said few times that well consent is the best way to do this and it's a permissive bill matter that's not the test it's important to point out this is a first amendment challenge and a due process of these are constitutional challenges and while the legislature has some free rein to define privacy how it wants to it cannot overstep constitutional bounds so the question is whether by using consent instead of privacy is the statute narrowly drawn to serve a substantial government interest without unnecessarily interfering with first amendment freedoms that's the test not what is best and there's a few reasons why consent is a horrible substitute for a definition of privacy for one thing it gives government officials and public actors unilateral and unfettered right to deny the press or citizens the right to record gather information and disseminate information about the government putting all the hands on the consent allows a police officer to withhold his consent and say you can't watch what we're doing pay no attention to what your government is doing in that sense consent is a horrible fit with the first amendment protection o first amendment conduct that's implicated by the eavesdropping statute consent is also not easy the government has the state has suggested that consent makes this a lot easier we don't have to find out what's private and what's not but first saw the statute doesn't define consent second of all the statute doesn't include implied consent now this court read into the statute in the see how case implied consent but implied consen difficult standard it has to look at the facts and circumstances of every case and determine in that particular situation was implied consent given and then that begs the question of what are you consenting to implicitly just the recording of a conversation or the use and divulging of the information that's on there or the giving of that recording to someone to post on to you to what is your implied consent allowing  e consent is enough isn't an easy fix and i'd also point out that consent is not always easy to get we have a bunch of hypothetical situations we've presented in our brief the state has not said and i think admitted this morning that yes those examples that we put in there would fall under the under the statute and be criminal the high school student in the back of a p t o meeting doing a report for his civics class or something for the school newspaper who wants to record a debate about banning books in the school if you're in the back row of a crowded auditorium you may not be able to get consent the fact that you're in the back row and can't get consent shouldn't define whether or not you  have engaged in criminal conduct when the conversation that you are recording is plainly public but if this court doesn't want to get into the first amendment analysis  the court can also strike down the statute under the process because the severed link between the eavesdropping statutes means and it's and the disconnect is so great that it also fails even the rational basis the reasonable standard it's used there where substantive due process as a statute has to go down if it doesn't represent a reasonable method of preventing the targeted conduct this is not a reasonable math that it is not reasonable to say we are trying to protect private conversations and then say well we don't care if the conversations are private we don't care if they're public that's a problem here it's like the carpenter case the carpenter case said we don't like secret compartments in cars when they're used to hide contraband dangerous or illegal goods so instead of saying we're going to rights instead of writing a statute that says it's a crime illegal or contraband in a secret compartment in your car they say well it's just ban all secret compartments even if someone uses it to hide their jewelry from thieves this is the same idea or the state the general assembly has said we want to protect private conversations well so let's just make consent for all conversations the legislature is free to define privacy in a way that matters in a way that is important and makes sense for the legislature but it doesn't it's not allowed under the first amendment or under due process to eliminate entirely the concept of privacy it has to give some definition to some it has to include privacy and give some limit to the statute is one other point i'd like to make and then if there are no questions conclude and this is that the course about to hear people versus clarke which is also a challenge to the eavesdropping statute under different facts and the state has said here that miss taylor this isn't a public conversation it doesn't matter that she works for the court records office i've explained why that's wrong hundred eleven oil law under the capacity case the husky case and the park nicky case by the way which is a u s supreme court case which has similar language about public officers and officials losing certain privacy rights when they're engaged in their public duties but i think it's important to note that in the states replied three page one in the first paragraph in the clarke case they try to distinguish what happens in clark from what happens in alvarez and they say public officials when performing their public duties have no legitimate private c interests that would outweigh the strong first amendment interests at stake the state of illinois has taken that position in the people vs clarke case that is just the hostages of this case right here in this mongo spent more than twenty months in prison for recording just such a conversation a conversation with a public official performing her public duties that is unconstitutional and it's time for turkeys to be dismissed for good and for others to be spared the fate that she's gone through if this statute is about protecting conversational privacy it must be limited to private conversations probably legislator is free to define privacy in a way that best serves the people of the state of illinois and the first amendment and the due process clause as to not permit the legislature to eliminate entirely the concept of privacy from the eavesdropping statute and make felons out of people who record plainly public speakers engaged in public conversations on behalf of mismo longo i ask that you find the eavesdropping statute unconstitutional either on  face or as applied to non private conversations and i ask that you dismiss the case against thank you very briefly first just to clarify the facts just some want in the record on page one eighty two of the canon law record is the defendant's pro se motion to declare the statute on has usually man page one eighty two is where she specifically says that the recording was done based upon her recent suspicion that a crime was being committed against her essentially invoking the exemption contained under the eaves dropping statute clearly showing that this was done purposely and with knowledge that it was otherwise improper to do that but more directly to the legal arguments but again i'll say again counsel is asking this court to essentially rubber stamp the alferez decision author however must not have read it carefully because the opera's decision specifically says that the only legislature is not restricted to keeping track of privacy they have the freedom to decide the best manner of ensur communication between two or more persons and then we have this phrase that was added later regardless of whether one or more of the parties intended their communication to be of a private nature under circumstances justifying that expectation specifically adapted by the legislature in response to the beardsley hearing cases and what the court or what the legislature was trying to do was to eliminate what the beardsley court held was simple party consent that one party to a conversation could make the going on in the room above them versus a conversation we're declaring a same something and the other person is recording those words is it no longer private if it's a conversation like this one where one person had a hidden recorder and recorded the conversation and in both cases this court held that the statute because it were wired referred solely to a private expectation and that one party could have an expectation that it wasn't again i mean is that the legislature has taken out of the statute the whole idea of privacy even when you say that that's the basis of the law is i said the legislative intent is to protect conversational privacy i believe that after beardsley inherent in the legislature determine the best way to do that the best way to ensure that all parties to a conversation have their privacy protected is to demand that all parties to the conversation give consent to the to the recording of the conversation because that's what i believe that language means because of the context of the single party consent that was recognized in beardsley in harrington in the legislative purpose to change that they determine that consent was the best manner of ensuring that each person's privacy rights are respected instead of just one person to the conversation about open justice trace what language what specific words then the statutory definition of conversation evoke your conclusion of the meaning of that  i'm having a hard time understanding how you get to that completely the legislative purpose underlying conversation what i mean ask you to tell us what language what words in the statutory definition translated to what you said it will be honest i don't believe that there  in just the common understanding of the respect that is given to private conversations in allowing the individuals participate in the conversation to define the scope of the conversation that's it but i will honestly admit that there is no specific reference in the legislature in the legislation identifying a specific purpose of conversational privacy but the in terms of the argument that say under the head yes the cases that the that there is no expectation of privacy on behalf of public officials and public employees i point out that those cases involve the tort of invasion of privacy as opposed to a legislative determination that certain conversations are entitle to private to respect to engage in conversation privacy in so as we said in my brief as i say and i said earlier this is a legislative question the legislature has the authority has the power to decide that all conversations even those involving government officials have some respect for privacy in order to ensure the free and open exchange of ideas and that's what happened here and taylor did not know that she was being recorded she did not have the freedom to decide what she was going to say what she wouldn't yes she was engaging in her job as a public official but she still had a role to decide personally what she was going to say how she was going to say when she was going to say it and that's what the legislature here intended to protect that person's but i will candidly meant that at this court finds that the recording provision is unconstitutional then the publishing provision one would fall also in the reason why is because in the bar nicky case the court said that you cannot charge someone with unlawful distribution of otherwise improperly recorded information if they were knapp the ones who did it unlawfully if they did it on lawfully you can charge them but if they didn't do it on lawfully themselves you can't charge them so if this