Illinois Legislature Passes Recording Ban To Protect Public Servants – Not The Public

from the the-fix-that-maintained-the-status-quo dept

Illinois’ awful “eavesdropping” law was mostly known for being abused by cops to prosecute citizens who recorded them. This strayed pretty far from the spirit of the law (you know, actual eavesdropping). Courts, including federal courts, declared this interpretation of the law unconstitutional in various decisions and in March of this year, the state Supreme Court overturned the law completely.

Legislators have now pushed through a new version of the eavesdropping/wiretapping law — one hopefully more compliant with the First Amendment. But those hopes will need to be tempered. The new bill, now resting on the governor’s desk, doesn’t do much to prevent law enforcement and other public officials from using the law as a shield against recordings.

The first indicator that this bill isn’t meant to fix what needed to be fixed lies in its genesis.

[I]t was introduced on Tuesday, Dec. 2, as an amendment to an existing bill on a completely different subject. The amendment removed all of the bill’s previous content and replaced it with the new ban on recording. The House passed it the following day, and the Senate passed it the day after that. So the people who would have cared most about this bill probably didn’t notice it in time to object.

Note that Illinois Policy’s writers (Jacob Huebert and Bryan Jackson-Green) refer to the new bill as a “recording ban.” They aren’t kidding. The language leaves key stipulations open to interpretation.

Under the new bill, a citizen could rarely be sure whether recording any given conversation without permission is legal. The bill would make it a felony to surreptitiously record any “private conversation,” which it defines as any “oral communication between 2 or more persons,” where at least one person involved had a “reasonable expectation” of privacy.

As we know, public officials performing official duties aren’t afforded an expectation of privacy. But what happens when an officer enters a home or business? Once out of public areas, do officials obtain an expectation of privacy? What about phone calls to and from public officials? Is the fact that it occurs on a “private” line enough to make any recordings a criminal offense? The bill simply doesn’t say, apparently leaving this important distinction up to various courts to decide.

The bill further acts as deterrent against recording public officials by handing out inequitable penalties for violations.

The bill would also discourage people from recording conversations with police by making unlawfully recording a conversation with police – or an attorney general, assistant attorney general, state’s attorney, assistant state’s attorney or judge – a class 3 felony, which carries a sentence of two to four years in prison. Meanwhile, the bill makes illegal recording of a private citizen a class 4 felony, which carries a lower sentencing range of one to three years in prison.

Citizens have long known that laws work differently for the public than they do for their public servants. This legislation goes the extra distance to spell it out in black and white. According to the wording, public officials’ privacy is worth more than private citizens’ privacy.

Unfortunately, the legislation may pass constitutional muster because the wording can be interpreted to be protective of First Amendment activities — even as its lack of specificity encourages interpretation to the contrary.

And there’s another law enforcement bonus hidden within the bill as well, as the ACLU points out.

Compared to the last version of the Illinois eavesdropping statute, the new statute significantly expands the circumstances when police and informants may record and intercept private conversations and phone calls without all-party consent or a warrant. We know of no evidence that the prior version of the statute, which required police to seek judicial approval, was any impediment to law enforcement in these instances. We are concerned about the expanded number of cases where no judicial officer will provide a check on police.

If this bill goes through — and there’s good reason to believe it will, what with all that cherished “bipartisan support” behind it — police officers will still be able to use the vague wording of the law in their favor. The lack of clarity invites law enforcement to take their chances on the wheel o’ justice and see how the courts interpret the new statute — a process that goes in motion long after someone’s recording has been halted and charges have been filed.

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Comments on “Illinois Legislature Passes Recording Ban To Protect Public Servants – Not The Public”

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59 Comments
RadioactiveSmurf (profile) says:

A felony! Really?!?! I feel like a felony doesn’t mean what it used to mean. When recording a police officer, something perfectly legal in any sane state, ruins your life there is something massivly wrong. Maybe they should focus more on fixing their budgets and not electing corrupt politicians instead of further making a mockery of Illinois.

Anonymous Coward says:

Re: Re: Re:

“I bet this will make all of those recordings that got the last governor thrown in jail a felony, so the future governors are free to abuse all the things.”

I thought laws couldn’t be applied retroactively.
If you do something legal on Monday and it’s outlawed on Tuesday, you can’t be prosecuted for what you did on Monday.

tqk (profile) says:

Re: Re: Re: Re:

I bet this will make all of those recordings that got the last governor thrown in jail a felony, so the future governors are free to abuse all the things …

I thought laws couldn’t be applied retroactively.

You didn’t even try to understand what they wrote. Notice the bit about future governors? I’d give you a pass if English wasn’t your first language, but I doubt that’s the case. You’re just lazy.

Anonymous Coward says:

Re: Re:

The tree of liberty from time to time must be refreshed with the blood of patriots and tyrants.

So remember… everyone that voted for an R or D or supported them for the past couple of elections have been voting to ensure that America will go to war with itself.

Neither party gives a fuck about you or this nation and the current spending bill is proof that the Repukes did not deserve their victories. Don’t even get me started on the demturds.

That One Guy (profile) says:

Re: Re: Re: Future ghost state..

People with large amounts of disposable income and able to find jobs out of state will leave, people without those advantages will stay.

It’s easy to say ‘just leave the state if it’s that bad’, but you’re ignoring the fact that something like that takes a lot of time, money, and effort to manage.

Uriel-238 (profile) says:

To some degree, this is moot...

…given that law enforcement officers seem to go unindicted even when there is plenty of video recorded of their crimes.

One wonders how long it will be before the typical response to a domestic violence call is to summarily execute all the parties involved. The paperwork will certainly be cleaner.

In any case, it’s a good time to not call the cops. It’s a bad time to draw their attention for any reason.

That One Guy (profile) says:

Re: To some degree, this is moot...

In any case, it’s a good time to not call the cops.

Is there any good time to call the cops? I’ve read a good number of comments and articles that seem to say that them showing up more often than not seems to make whatever situation was already going on worse.

If I got mugged for example, successfuly or not, I certainly wouldn’t call the cops. My day sucked enough at that point, why would I want to make it worse?

Anonymous Coward says:

Re: Re: To some degree, this is moot...

Is there any good time to call the cops?

Probably five years ago, I was driving down the freeway——and swerved to avoid a nasty-sharp piece of jagged metal in the middle of the right hand lane.

Now, thirty years ago, for sure, I would’ve gotten home, then called the cops and told ’em the milepost, and expected that a trooper would eventually make his way onto that stretch of interstate—flip on his lights—walk out into the freeway—and make the traveling public just a little bit safer that day.

But five years ago? Not my problem. I just hope that jagged piece of metal didn’t wind up causing somebody a blowout and a rollover. But. Really. Not my problem. Not gonna call the cops. No.

John Fenderson (profile) says:

Re: Re: To some degree, this is moot...

“Is there any good time to call the cops?”

I would call them for situations that are both immediate and beyond what normal citizens could handle. Like a madman shooting things up, for example. I wouldn’t bother calling them for anything else, though, especially not to report a crime that’s already done being committed.

Anonymous Anonymous Coward says:

Re: Re: Re: To some degree, this is moot...

I do not disagree with your sentiment, however there is a caveat. For example, if, let’s say, your house was robbed while you were away, and valuable things are taken, your insurance company will not make a payment without a police report. So, we make a determination. Is the value of the property taken of greater value than the possibility of the cops answering the call with a gun drawn swat team making a false assumption that the robbers as still there and come into your home blazing away cause they thought you were the robber. In today’s environment, this is not out of the question.

Now how are we going to teach our children about balancing what might be over what has happened, when that decision just might bring about serious unintended consequences?

No Name for this Use says:

Re: Re: Re:2 To some degree, this is moot...

This is just more examples of fascist violence.

“…your insurance company will not make a payment without a police report.” the state and the corporation must cooperate to condescend to the violence you have suffered.

“…swat team making a false assumption…” there is no need for them to assume that there is any criminality involved to shoot you to death.

That is the false assumption, that they are there to protect you in any way and not to terrorize and murder you.

That One Guy (profile) says:

Re: Re: Re:2 To some degree, this is moot...

Another poster on another article actually had that very thing happen to them, and according to them they went to the police station to report what had happened and get the police report, but refused to let the police do anything beyond that.

No showing up looking for clues, no investigations, just enough for the police to file the report so they could give it to their insurance company.

Seemed like a good way to minimize the contact they had with the police, and therefor the chance for the situation to get worse.

John Fenderson (profile) says:

Re: Re: Re:2 To some degree, this is moot...

“One nutjob with a gun firing indiscriminately around him is enough for my tastes.”

Well, the cops are already running around with guns anyway. Besides, what’s the alternative? I would rather have the cops doing that than vigilantes. Admittedly, the difference can sometimes be slight — but sometimes it can be great.

TruthHurts (profile) says:

Re: To some degree, this is moot...

I’m more concerned with when the cops start showing up and the people defend themselves pre-emptively by shooting the criminals as they enter the house.

But your honor, they came in guns drawn, swat style, when we called in because our child was having breathing problems. It caused my child to panic, stop breathing – so in self defense I shot the asshole, and my child started breathing again.

Yeah, I know, total bullshit logic, but I can see events that aren’t such bullshit happening – escalation from both sides if the side that is supposed to always do the right thing doesn’t do always do the right thing.

No Name for this Use says:

Re: Re: To some degree, this is moot...

“I’m more concerned with when the cops start showing up and the people defend themselves pre-emptively by shooting the criminals as they enter the house.”

I assume you mean shooting cops by criminals as they kick your door in with SWAT and grenades, if only it would actually happen, but the reality is that that stuff in LA in what 94 was the only time automatic weapons have been used against cops, err ever, no apologist can make up for all of the murder.

Real life: babies get a flash bang to the head and no one is even taken off duty.

That One Guy (profile) says:

Re: Re: To some degree, this is moot...

I’m more concerned with when the cops start showing up and the people defend themselves pre-emptively by shooting the criminals as they enter the house.

At which point they get charged with murder/attempted murder of an officer, assuming they survive the return fire.

That’s not a hypothetical by the way, I’d have to go digging, but a while back someone had just that happen, police busted into his house via the window in the very early hours of the morning, he assumed he was being robbed by a bunch of armed criminals, opened fire, and is now facing jail time for defending himself and his house.

TruthHurts (profile) says:

Re: Why would ... 1 Strike you're out law...

Anyone who resigns or is fired from law enforcement under suspicious circumstances should be blacklisted from ever serving in law enforcement anywhere, ever again. They cannot be trusted to hold that kind of power over people, period.

The criminal cops will be forced out, they will resort to their criminal nature and hurt someone else without their badges and be removed from the streets, hopefully permanently.

This is why I strongly believe that anyone working for any kind of law enforcement agency should have any and all punishments for any laws broken be quadrupled.
1 year becomes 4 years, $10,000 fine becomes a $40,000 fine, etc…

Uriel-238 (profile) says:

Re: Re: Blacklisting officers.

Anyone who resigns or is fired from law enforcement under suspicious circumstances should be blacklisted from ever serving in law enforcement anywhere, ever again.

Should happen, maybe.

Will happen, never.

Usually it’s pretty hard to get fired from a state position no matter how incompetent you are. But the blue brotherhood cares for its own to an even greater degree.

In order to forge a properly regulated justice system, we’ll have to dismantle the one we have.

bob (profile) says:

that's democracy for you

this highlights the difference between a representative democracy (what you see happening here) and a well constructed republic, which is what was envisioned by the founders.

within the republic, all the laws apply equally to all.

in any democracy, the more powerful group will vote in laws that benefit the powerful group, widening the gap between the power group and everyone lesser than them.

it’s how democracy works. in this case the only difference is that the power group is the those elected as representatives in the representative democracy.

results end up being the same, no matter what kind of democracy it is.

No Name for this Use says:

Re: that's democracy for you

I’m pretty sure you don’t understand what is meant by a republic, Rome did exactly what is happening in the US and destroyed itself, the rich stole all of the land and livelihoods of the citizens of Rome.

“…within the republic, all the laws apply equally to all.”

This statement is the opposite of true, it is so untrue I don’t really know how to approach discrediting it since it should be obvious to anyone with any grasp of history, how entirely untrue this is.

I have not enough hands

Geno0wl (profile) says:

Forgot to mention

You didn’t mention the margin the House (by a 106 to 7 vote) and Senate (46 to 4) passed it by. Which is notable because of how extremely lopsided it is.
Whenever a Bill passes with near universal support, it is either a very good Bill or a very bad Bill.
And I just don’t think they have the good of the public at heart here.

DaveK says:

Simple workaround.

The bill would make it a felony to surreptitiously record any “private conversation,” which it defines as any “oral communication between 2 or more persons,” where at least one person involved had a “reasonable expectation” of privacy.

No problem. Just declare yourself to be a self-employed researcher. Now all your recordings are business records, and we all know there’s no reasonable expectation of privacy in those!

Anonymous Howard, Cowering says:

This is a GOOD thing...

You may be looking at this from the wrong angle. Affix clear plastic signs to the inside of your back and driver’s side windows with the phrase “This vehicle records its surroundings” in inch-high white letters. Then no one can say they did not know they were being recorded, and if the officer does not want to be recorded, s/he can simply decline to continue the encounter. If they tell you to turn off the recording, that indicates their knowledge that they were being recorded, and you may legally continue to do so.

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