Police Abuse

New Illinois Eavesdropping Act Still Seems Designed to Protect Cops From Scrutiny

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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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59 responses to “New Illinois Eavesdropping Act Still Seems Designed to Protect Cops From Scrutiny

  1. It’s Illinois (my home state). The law without a doubt is based on the FYTW principle. Mike Madigan wouldn’t have it any other way.

  2. My brother points out that here in MA, if I were to record my ex-wife being psycho on the phone, it would be a felony. If I were to hire a court reporter to listen in secretely and have him type up a transcript on the fly, it would be completely legal.

    1. It’s just the act of recording, not eavesdropping, that’s illegal?

      1. Correctamundo, and I suspect it has more to do with keeping the shakedowns MA legislators are famous for from getting into the news in embarrassing ways.

        1. There’s also a hilarious aspect:

          Video recording is OK; it’s the sound recording that’s verboten.

          So people speaking in sign language are effectively enduring a different treatment under the law than people who can speak.

          I think there is a lucrative ADA lawsuit against the commonwealth here. ;D

          1. I can’t imagine what interest is served by letting people video record but not audio record. That’s truly bizarre right there.

            1. “i wasn’t choking him. I was giving him a neck massage!”

            2. These laws generally date back to wiretaps, where the only recording being done was audio recording.

  3. 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.

    Whatever happened to equal protection?

    1. Apart from the underlying issue, who in the world thinks four years imprisonment is a proper response to an unauthorized recording of a public official? I mean, even if you think the recording could be wrong, four years?

      1. I would say the guys writing the law… you know, the government officials. 😉

        1. Yeah, I should have said ‘what normal human being.’

        2. I wonder how much they actually discuss the actual penalties or if they just assign the classes of felonies without really considering what the possible penalties are.

          It’s kind of insane that people seem to think that a year in prison is somehow a mild punishment.

  4. “without asking for permission first…if people understand the ground rules, they can exercise appropriate caution.”

    I’m not sure people understand the ground rules if the recorder hasn’t said whether they are recording or not, unless the ‘ground rules’ is that anyone could, or could not, be recording at anytime you talk to them?

    1. The latter is what I had in mind. In states that allow recording with one-party consent (the vast majority), people should be aware that any given conversation might be recorded by the other person.

      1. Just from a ‘game theory’ kind of view, wouldn’t that result in a general increase in people you interview being more guarded or reluctant to talk in the first place?

        1. After a while people stop thinking about it and revert to the norm.

  5. The courts are barking up the wrong tree, here.

    Recording cops isn’t really a 1A issue. Its a due process issue. This law makes it illegal to gather evidence to use in your own defense. It should be struck down on that basis.

    Really, you need a blanket exception from the law allowing any person to record any public official, period, full stop.

    There is no privacy interest, other than yours, at issue in any discussion involving you, so the privacy justification evaporates in that case.

    And, if a public official discloses information to you about a third party that is supposed to be private, well, its the public official who has violated their privacy.

    As for the classic cell-phone video, if you are present, then whatever happens in front of you isn’t private from you in any event. Since most of these are taken on public streets or public places, its just laughable that anyone would ever claim there is any privacy interest at all.

    1. I don’t see why the police don’t already act under the assumption that anything they do or say can be used against them in a court of law.

      Must be the decades of getting away with shit because they’re police.

    2. I agree that it is not a 1A issue. The First has to do with disseminating information, not collecting it. It’s another problem caused by the (horrible, stupid and wrong) conflation of “the press” with “professional journalists”. Journalist source shield laws have nothing to do with it either, even though they are a good thing.

  6. This is a critical point:

    People are generally free to report the content of even the most private conversations in which they themselves participate.

    Its not private unless you are prohibited from disclosing it. That’s the place to start in determining whether there is an expectation of privacy. And there simply isn’t one in nearly any interaction with a public official. If there is, it has to be clearly stated up front.

    1. I don’t know if I’d circumscribe the expectation of privacy generally as you do here, I’d just take your principle that there isn’t one in nearly interaction with a public official as correct. It would do the rest of the work here.

      1. I don’t know if I’d circumscribe the expectation of privacy generally as you do here

        For purposes of criminal law? Why not? How can you impose a criminal penalty for violating someone’s privacy unless you first define in clear and objective terms what is private and what isn’t? A subjective expectation of privacy doesn’t cut it, for purposes of criminal law. It has to be objective and defined in advance.

        Your ex screaming abuse? Not private.

        Medical records? Private, because they are legally defined as such.

        1. Really, it comes down to whether the form in which you disclose the conversation matters.

          If you can disclose it by recounting it from memory, then what difference does it make if you disclose it by playing the tape?

          1. Imagine someone who was in a gym locker room with you describing you showering vs video recording the same and showing it.

            But I’m mostly thinking of how the broader expectation of privacy provides legal protections from government electronic surveillance

            1. Does the video have sound or not? Because that it the issue here.

              1. Is it? This doesn’t deal with video and/or recording without consent?

                1. The headline e above says The War on Cameras

                  1. No, the headline says “eavesdropping.”

                    1. The headline on the magazine pictured above.

                    2. But if it makes you happier, use another example with just audio (maybe you blowing up the toilet in a stall in a Hardee’s bathroom, somebody who was there describing it vs audio taping it).

                    3. Sorry, but “audio of somebody blowing up the toilet” falls under the hilarity exception to privacy laws.

            2. But I’m mostly thinking of how the broader expectation of privacy provides legal protections from government electronic surveillance

              The privacy law I am familiar with (HIPAA), provides almost no protection against government access to your medical records.

              Imagine someone who was in a gym locker room with you describing you showering vs video recording the same and showing it.

              I don’t see a criminal violation here, in the absence of a statute prohibiting people from distributing (nude) photos/videos of you without your consent.

              As to whether you have a civil claim, well, who knows? We aren’t talking about that, though. We’re talking about criminal laws.

            3. Imagine someone who was in a gym locker room with you describing you showering

              “Now, the really incredible part was how he turned up the hot water while he was shaving! Here’s a hint” ‘Look, ma, no hands!’ “

    2. “Officer, I’m going to tell you something private okay?”
      “Yes”
      “I murdered John Doe”

      Adimssable? Of course. Therefore all A-B conversations are similarly admissable unless the court has provided a specific exemption to the benefit of the non-state actor. Why is this so hard?

      1. “John Doe was my rat terrier. It gnawed on my favorite loafers”

        1. “Come to think of it, it might have just been a rat.”

        2. My rat terrier is named Seumas. He’s not dead, but sometimes you want to choke the shit out of him.

          Mostly he’s a good dog.

          /rambling

  7. They’ve probably had too many problems with recordings contradicting police testimony. Obviously the solution is to stop people from recording the police.

    1. You laugh, but that’s actually the case here in MA.

      The cruiser dashboard camera’s were removed because they were contradicting too many police reports.

      1. How did they spin that one?

        1. It’s the commonwealth of Massachusetts. They don’t need to spin anything. The political centroid of the state are people with the political views and the intelligence of Craig-in-Mass.

          These are the same people who think voting for Elizabeth Warren is sticking it to the corporations. You know… morons.

        2. How did they spin that one?

          FYTW

  8. Your lunchtime derp:

    http://carm.org/what-i-believe-matt-slick

    Finally, in short, I am a five point calvinist, amillennial, post-trib rapture, peudobaptistic (not for salvation), non-cessationist, and covenantal. I do not break fellowship with anyone who holds to the essentials of the faith (i.e., the Trinity, the Deity of Christ, Jesus’ Physical Resurrection, Virgin Birth, Salvation by Grace through Faith alone, Monotheism, and the Gospel being the death, burial, and resurrection of Jesus) but does not affirm Calvinist Theology in the non-essentials. I strongly believe that God’s grace and mercy are so extensive that within the Christian community there is a wide range of beliefs and as long as the essentials are not violated, then anyone who holds to those essentials but differs in the non-essentials is my brother or sister in Christ.

    The man is a walking punchline to an Emo Phillips joke.

    http://www.theguardian.com/sta…..y.religion

    1. Is this how you call yourself a Methodist in PoMo writing?

      1. Presbyterian – Like Having No Religion at All?

        1. Unitarian – Literally Having No Religion at All?

          (disclaimer: I have been to several Unitarian services, and I generally liked them a lot)

          1. I like them too, except for the singing.
            That always seemed to hokey for me.

      2. Methodist…

        All the salvation…

        None of the guilt.

        1. Which one has all of the guilt, but none of the salvation?

    2. BTW, both of those were totally worth reading.

      My day’s ration of awesome. Thanks 🙂

    3. “peudobaptistic”

      He misspelled pedobaptistic

  9. 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?

    Um…a pig is a public “servant” and exists only through my funding. If he’s acting in an official capacity, he NEVER has a right to privacy.

    I mean, WTF? Why is this even an issue?

    1. Exactly. Would the officer be able to use anything I said against me in a court of law? Then everything we say must be on record.

      1. That is just so fkn true.
        If something is legally private, then that communication is legally privileged, and if received by an official, like a cop, cannot be used in court.
        If anything you say to a cop can be used in court then it is not private.

  10. Personally I am fine with this law if it protects my privacy during encounters with police. I’ve been detained for being suicidal in the past, and quite frankly I don’t want random strangers recording those one-on-one conversations particularly when I am disclosing personal information with an expectation of privacy (such as my name, street address, phone number, etc.)

    The fact of the matter is, I don’t think that recordings (whether video OR audio) actually curtail abuse of authority. I was assaulted and battered by armed security guards in a hospital only last month for doing nothing more than walking out of the ER without signing my discharge papers. The entire incident was recording on surveillance cameras in the hospital. I tried to file a criminal report with the police, and they disregarded my claim. I called numerous attorneys around the state, none of them wanted to represent me in civil litigation. Even with raw security footage at their disposal of a harmless and helpless patient being choked, dragged, and thrown around by armed guards, nobody wanted to touch this case because it involved a mentally ill patient.

    When the odds aren’t in your favour, because the ENTIRE SYSTEM is already rigged against you, video and audio recordings make no difference whatsoever.

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