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

Legal Issues

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.

Filed Under: eavesdropping, illinois, law enforcement, recording police