In March the Illinois Supreme Court unanimously overturned that state's draconian Eavesdropping Act, finding that it "criminalizes a wide range of innocent conduct" and "burdens substantially more speech than is necessary to serve a legitimate state interest in protecting conversational privacy." Last week the Illinois General Assembly overwhelmingly approved a new eavesdropping law that purports to meet the court's constitutional concerns. Whether it actually does is a matter of dispute.
The bill, which awaits Gov. Pat Quinn's signature, allows people to record conversations when all parties have consented or when none has a "reasonable expectation" of privacy. That's an improvement over the old law, which made it a felony to record any conversation without all-party consent, including public interactions with police officers. But because it may be difficult to determine in advance which conversations will be deemed private, the new version of the eavesdropping ban could still have a chilling effect on recordings of public officials.
The ACLU of Illinois, which challenged the old law, objects to a provision in the new one that broadens the circumstances in which police may record private conversations without a warrant. But the ACLU likes the other changes made by the bill:
It is good that the new eavesdropping statute enacted during the veto session generally protects our reasonable expectations of privacy in our conversations, phone calls, and electronic communications from unwanted recording or interception, and that it does so without intruding on our First Amendment right to expose government misconduct by recording the non-private conversations of on-duty government officials. The new statute does this by prohibiting the recording and intercepting of only private conversations, unless there is all-party consent or a warrant.
By contrast, Jacob Huebert, senior attorney at the Liberty Justice Center, argues that "the new version is nearly as bad as the old one," since "a citizen could rarely be sure whether recording any given conversation without permission is legal." The bill says consent is required whenever "one or more of the parties intended the communication to be of a private nature under circumstances reasonably justifying that expectation." It adds that "a reasonable expectation shall include any expectation recognized by law, including, but not limited to, an expectation derived from a privilege, immunity, or right established by common law, Supreme Court rule, or the Illinois or United States Constitution."
Because it is hard to predict how the courts will parse those issues, Huebert says, people recording conversations will often be unsure whether they are committing a felony. The Illinois Supreme Court, for example, indicated that police performing their duties "in public places" do not have a reasonable expectation of privacy. But what about a cop who enters someone's back yard or serves a warrant in a private office or residence? Is recording what he says in those settings legal or not? What about telephone conversations with public officials about public matters? Does a citizen risk prosecution and imprisonment by recording those interactions without consent?
In addition to this sort of uncertainty, Huebert notes, the eavesdropping bill retains another odious aspect of the old law: It punishes unauthorized recordings of public officials—specifically, police officers, prosecutors, and judges—more severely than unauthorized recordings of ordinary citizens. The former would be a Class 3 felony, punishable by two to four years in prison, while the latter would be a Class 4 felony, punishable by one to three years in prison. If anything, that is the opposite of the distinction the law should draw, since public officials, given the power they wield, should be subject to greater scrutiny than private citizens. "There's only one apparent reason for imposing a higher penalty on people who record police in particular: to make people especially afraid to record police," Huebert writes. "That is not a legitimate purpose."
The ACLU's preference for all-party consent, although motivated by a desire to protect people's privacy, seems misguided to me. All but 12 states allow the recording of conversations with the consent of one party. That rule makes more sense to me, and not just because it allows me to record interviews without asking for permission first (which is usually not a problem but can dissuade some sources from speaking on the record, just as taking out a pen and notepad can). Think of it this way: People are generally free to report the content of even the most private conversations in which they themselves participate. Adding the possibility of recording (or note taking) can only serve to make such reports more accurate. And if people understand the ground rules, they can exercise appropriate caution.
[Thanks to Mark Sletten for the tip.]
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