New Illinois “Eavesdropping Law” Distorts Ability To Record Law Enforcement

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Annabelle Bamforth
New Hampshire-based writer Annabelle Bamforth is TruthInMedia.com's editor-in-chief, focused on breaking the left/right paradigm through new media and local politics. To share a news tip, contact annabelle@truthinmedia.com.

A new anti-eavesdropping bill, which would replace a former law that had been struck down as unconstitutional by the Illinois Supreme Court in March, passed the state’s House and Senate last week. The new legislation has been identified by proponents as reform aimed at protecting private conversations, but the imprecise language contained in the law could create new confusion regarding the ability of citizens to record encounters with police and public officials.

The state’s previous law had prohibited the recording of any conversation without consent from all parties involved, which was presumed to protect private conversations from being documented. However, the law applied to all conversations that were unreasonably expected to be private, and one critical consequence of the law was the inability to record interaction with law enforcement and other government officials for the sake of “privacy”.

The old statute criminalized “the recording of conversations that cannot be deemed private: a loud argument on the street, a political debate on a college quad, yelling fans at an athletic event, or any conversation loud enough that the speakers should expect to be heard by others,” according to the court’s opinion. “None of these examples implicate privacy interests, yet the statute makes it a felony to audio record each one.”

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The new bill was introduced on December 2nd as an amendment to another existing, unrelated bill. All of the content of the unrelated bill was removed and then replaced with the restrictions on recording.

Rep. Elaine Nekritz (D-Northbrook), a sponsor of the new bill, said that “The most important thing the bill does is to restore Illinois to a standard that requires everyone in a private conversation to consent to a recording” and claimed the bill satisfies “the Supreme Court requirement by limiting that to conversations where there is a reasonable expectation of privacy.”

Although the Associated Press has reported that the new bill “attempts to protect people from surreptitious and improper recording of their conversations without infringing on the rights of others to disseminate what others say,” independent research organization Illinois Policy Institute has criticized this new bill’s obscure wording, calling the new version “nearly as bad as the old one.”

According to the Illinois Policy Institute, “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.” Illinois Policy noted that the law does not clarify when someone should have a “reasonable expectation of privacy” and does not explain what qualifies as a “public encounter”.

The new bill would classify unlawful recording of police, an attorney general, assistant attorney general, state’s attorney, assistant state’s attorney or a judge a Class 3 felony, which can result in a 2-4 year prison sentence. Unlawful recording of a citizen would be classified as a Class 4 felony, which could result in 1-3 years in prison. A felony conviction and subsequent prison sentence has the ability to deter people from recording encounters, especially if they are unsure when it is legal to record conversations.

The bill currently awaits the signature of Gov. Pat Quinn. It is available to read here.

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