The Media has been Lying: The Illinois Eavesdropping Bill Explained
Just when you thought it was safe to record cops in Illinois without spending more than a decade in prison, along comes a bill that is said to be as Draconian as the previous law, which was ruled unconstitutional earlier this year after numerous citizens were put through the judicial wringer for daring to record public officials in public.
At least according to the terrifying news headlines that went viral this week, turning into various memes, informing readers that it would remain a felony to record police on duty in the Land of Lincoln.
But don’t believe the hype.
The bill, which still needs to be signed into law by Governor Pat Quinn, does not forbid the recording of police in public. The ACLU spent years in repeated lawsuits to ensure that would not be the case.
But that did not stop the Illinois Policy Institute, a non-profit organization based in Chicago, to publish a story under the following headline:
The Illinois General Assembly just passed a bill that would prevent citizens from recording the police.
From there, it was picked up by various news sites who apparently didn’t read the actual bill, creating a firestorm of outrage across the internet from readers who also didn’t bother reading the fine print.
While the bill allows for the recording of public officials in areas where they have no expectation of privacy, the bill forbids the surreptitiously recording of public officials, even if they do not have an expectation of privacy.
In that regard, the law would be no different than Massachusetts’ wiretapping law, which became the strictest wiretapping law in the country after Illinois was stripped of that honor this year in a lengthy battle that cost the taxpayers more than $600,000 – thanks to overzealous Cook County State Attorney Anita Alvarez who fought tooth-and-nail to keep the unconstitutional law in the books.
But it’s not the banning of surreptitious recording that is bothering critics of the new bill. It is the banning of nonconsensual recordings of people, including police, in instances where they would have an expectation of privacy.
However, the bill is no different than the wiretapping/eavesdropping laws in the nine other all-party consent states in the country, which provide expectation of privacy protections from being recorded without consent, including California, Connecticut, Florida, Maryland, Montana, Nevada, New Hampshire, Pennsylvania and Washington. The rest of the states, including Washington D.C., are considered one-party consent states, meaning citizens can record conversations without consent as long as they are part of the conversation.
According to the Illinois Policy Institute:
Earlier this year, the Illinois Supreme Court struck down a state eavesdropping law that made it a crime for citizens to record conversations with police or anyone else without the other person’s permission. The court held that the old law “criminalize[d] a wide range of innocent conduct” and violated free-speech rights. In particular, the court noted the state could not criminalize recording activities where there is no reasonable expectation of privacy, including citizens’ “public” encounters with police.
Now the old law is back, with just a few changes, in a new bill sent to the governor’s desk by the Illinois Senate on Dec. 4. The bill not only passed, but did so overwhelmingly with votes of 106-7 in the House on and 46-4-1 in the Senate.
The new version is nearly as bad as the old one.
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.
When does the person you’re talking to have a reasonable expectation of privacy? The bill doesn’t say. And that’s not something an ordinary person can be expected to figure out.
A law must be clear enough for citizens to know in advance whether a particular action is a crime. This bill doesn’t meet that standard, which should be reason enough for a court to strike it down if it becomes law.
But lack of clarity isn’t the only problem with this bill.
Although it appears to be designed to accommodate the Illinois Supreme Court’s ruling striking down the old law, the bill actually is designed to continue to prevent people from recording interactions with police.
The bill says it would only be a crime to record someone where there is a reasonable expectation of privacy, which should mean that recording public encounters with police would not be a crime, and the old law’s fatal constitutional flaw would no longer exist.
But the bill doesn’t really fix the problem. Again, citizens can’t be expected to know for sure precisely which situations give rise to an “expectation of privacy” and which don’t. The Illinois Supreme Court said that police don’t have an expectation of privacy in “public” encounters with citizens, but it did not explain what counts as a “public” encounter. So if this bill becomes law, people who want to be sure to avoid jail time will refrain from recording police at all, and the law will therefore still effectively prevent people from recording police.
Perhaps the bill does not provide a detailed description of what constitutes an expectation of privacy, but it does refer to previous case law from various levels of the court system, including “common law, Supreme Court rule, or the Illinois or United States Constitution.”
And most of that precedent is based on common sense on a case-by-case basis.
According to the Legal Information Institute:
The expectation of privacy test, originated from Katz v. United States is a key component of Fourth Amendment analysis. The Fourth Amendment protects people from warrantless searches of places or seizures of persons or objects, in which they have an subjective expectation of privacy that is deemed reasonable in public norms. The reasonableness standard is construed upon the totality of circumstances on a case-by-case basis. The person’s precautions taken to exclude others’ access are strong indicators to the expectation of privacy and might be taken into consideration by the court.
When it comes to recording cops, they would have no expectation of privacy, unless you are recording them without their consent in a locker room or a bathroom stall or in their own home for that matter, meaning you would have to invade their personal space on their private time, rather than the other way around, which is what usually takes place with cops.
So that shouldn’t be a case for concern.
Potential for Abuse
What should be a case for concern is the banning of surreptitious recording in areas where there is no expectation of privacy because that law can easily be twisted by cops as we have seen happen on several occasions in Massachusetts.
The Illinois Policy Institute is also concerned that police might try to circumvent the use of body cameras due to the bill’s expectation of privacy provision.
The bill might also provide an excuse to scuttle body cameras for police. Police may argue that using body cameras to record encounters with citizens outside of “public” places would violate the law, as citizens have not consented to being recorded.
Even if this bill were constitutional, it would still be unnecessary and a terrible idea. Most other states allow a person to record a conversation with only one party’s consent and don’t try to scare people out of recording police by threatening them with felony charges.
But although body cams are not specifically mentioned, they should fall under the same category as cameras on Tasers, which are mentioned.
For the purposes of this subsection (h), “enforcement stop” means an action by a law enforcement officer in relation to enforcement and investigation duties, including but not limited to, traffic stops, pedestrian stops, abandoned vehicle contacts, motorist assists, commercial motor vehicle stops, roadside safety checks, requests for identification, or responses to requests for emergency assistance;
Recordings of utterances made by a person while in the presence of a uniformed peace officer and while an occupant of a police vehicle including, but not limited to, (i) recordings made simultaneously with the use of an in-car video camera and (ii) recordings made in the presence of the peace officer utilizing video or audio systems, or both, authorized by the law enforcement agency;
Recordings made simultaneously with a video camera recording during the use of a taser or similar weapon or device by a peace officer if the weapon or device is equipped with such camera;
Another cause for concern that the Illinois Policy Institute points out is the disparity in sentences for those who surreptitiously record public officials and those who record the rest of the peasants, whom they deem as “private citizens.”
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.
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. That is not a legitimate purpose. And recent history suggests it’s important that people not be afraid to record police wherever they perform their duties so that officers will be more likely to respect citizens’ rights, and officers who do respect citizens’ rights will be able to prove it.
That is probably the most egregious portion of the bill because it offers more protection to public officials than to private citizens.
And in corrupt-rich state like Illinois and in an especially corrupt-rich city like Chicago, public officials should have less protections from being recorded against their will than private citizens.
They are public figures, after all, who have less protection from defamatory statements made about them in the media where they would have to prove “actual malice” to sue for damages where a private citizen would only need to prove the statements were defamatory, which is why we can boldly say Cook County State Attorney Anita Alvarez is a disgrace to her profession without worrying about any repercussions.
So I couldn’t agree more with the Illinois Policy Institute that they are purposely trying to set it up where citizens will be intimidated from recording them. That has always been their method of operation, after all.
Although Alvarez coasted to victory for her second term as Cook County state attorney in 2012 with 77 percent of the vote, her reputation has taken a hit over this issue as well as several more instances where she showed no embarrassment to be protective of dirty cops.
In 2012, as she fought her hardest to keep the eavesdropping law alive, filing motions with the U.S. Supreme Court while vigorously prosecuting citizens for recording public officials in public, she became a national spectacle after going on 60 Minutes to defend the Chicago cops who had turned the city into the “False Confession Capital” of the country.
This is how the Huffington Post described it:
It has already been called everything from “political suicide” to “self immolation” to straight-up humiliation.
But whatever it was, Cook County State’s Attorney Anita Alvarez emerged from Sunday night’s CBS “60 Minutes” report (embedded above) on Chicago’s history of wrongful convictions looking much, much worse for the wear.
“60 Minutes” reporter Byron Pitts looked at how Chicago has managed to rack up more false convictions than any other city in America in a report that included stirring interviews from men who lost family members, freedom and a significant chunk of their life due to wrongful convictions stemming from police coercion.
Alvarez quickly went off the rails as she defended the police’s actions in two cases, including the high-profile 1994 murder of Nina Glover (her clip begins around the 7:30 mark in the embedded video).
Among her biggest blunders: backing a bizarre “necrophelia” theory to explain how the DNA from a convicted rapist — and not the men forced into confessions — was found on the victim and throwing cold water on Pitts’ suggestion that prosecutors maybe should have been more interested in a convicted serial rapist than a pair of young men whose DNA was absent from the scene. Pitts appeared somewhat incredulous during Alvarez’s response.
The Capitol Fax blog and the Sun-Times both featured the video, though the Tribune’s Eric Zorn has a transcript of some of most cringe-worthy moments from the broadcast.
So is obvious this woman not only deserves less protection from being recorded against her will, she should be ordered to wear a live streaming body cam during all waking hours. We’ll give her a few moments of privacy for bathroom breaks, but only after assuring she is not meeting with anybody else inside a bathroom stall for a back room deal.
Alvarez turned the lives of several citizens upside down during her relentless crusade to incarcerate them for recording cops in public, including one woman who was facing 15 years in prison for recording internal affairs cops trying to intimidate her from filing a complaint against an officer who had groped her breast.
Alvarez vigorously prosecuted Tiawanda Moore, turning a blind eye from the groping beat cop and the bullying internal affairs cops. But a jury acquitted her within an hour with one juror saying the case was a “waste of time.”
Moore has since filed a lawsuit against the groping cop and one against the internal affairs cops where she describes how she pulled out her phone and hit record without announcing she was going to record after realizing they were trying to strong-arm her into not filing a complaint.
The cops said they suspected they were being recorded after noticing a microphone symbol on her Blackberry, but when they asked her, she denied it. They eventually ordered her to hand over the phone, demanding her password and accessing her phone without a warrant because that’s just how things are down in Chicago.
Had the incident taken place in Massachusetts, where it is illegal to surreptitiously record public officials without their consent, she would still not be guilty of a crime because she had the phone out in the open where they were able to see it was recording, which was affirmed in the 2011 landmark Glik vs. Boston case, which stated “that the secrecy inquiry turns on notice, i.e., whether, based on objective indicators, such as the presence of a recording device in plain view, one can infer that the subject was aware that she might be recorded.”
But the Glik decision was made in the First Circuit Court of Appeals, which encompasses Maine, Massachusetts, New Hampshire, Rhode Island and Puerto Rico.
Illinois falls within the Seventh Circuit, which relies on Alvarez vs the ACLU, for precedent in eavesdropping cases, which states the following:
It is small consolation to be told by the majority that “the ACLU plans to record openly, thus giving the police and others notice that they are being recorded” (emphasis in original). All the ACLU means is that it won’t try to hide its recorder from the conversants whom it wants to record, though since the typical recorder nowadays is a cell phone it will be hidden in plain view. A person who doesn’t want his conservation to be recorded will have to keep a sharp eye out for anyone nearby holding a cell phone, which in many urban settings is almost everyone. The ubiquity of re- cording devices will increase security concerns by dis- tracting the police.
So it seems as if the court reluctantly accepted that as long as the recording device is visible, it would not constitute surreptitious recording.
But we can imagine Queen Alvarez having a different interpretation on that.
Wiretapping or Eavesdropping?
The wiretapping/eavesdropping laws were written decades ago and refer specifically to audio recordings, not video or photography, and were originally intended to protect private telephone conversations.
Wiretapping, the legal term used in many states, is interchangeable with eavesdropping, which is how it is referred to in the Illinois and Michigan, where it is lawful to secretly record a conversation you are part of, but not you are not part of.
After all, you cannot exactly eavesdrop into your own conversation.
According to the Digital Media Law Project:
Michigan law makes it a crime to “use any device to eavesdrop upon [a] conversation without the consent of all parties.” Mich. Comp. Laws § 750.539c. This looks like an “all party consent” law, but one Michigan Court has ruled that a participant in a private conversation may record it without violating the statute because the statutory term “eavesdrop” refers only to overhearing or recording the private conversations of others. See Sullivan v. Gray, 342 N.W. 2d 58, 60-61 (Mich. Ct. App. 1982). The Michigan Supreme Court has not yet ruled on this question, so it is not clear whether you may record a conversation or phone call if you are a party to it.
That would be an interesting ruling, which might have persuasive precedent in striking down the restrictions in the Illinois bill considering is not a wiretapping law, but an eavesdropping law.
And according to Black’s Law Dictionary, which is often used by the Supreme Court, the definition of eavesdropping is ” the act of secretly listening to a private conversation of others without their consent.”
So the Illinois law should have no bearing on citizens who record their own conversations with public officials, whether or not they make their recorder visible, which always carries the potential of leading to a physical beat down from an overly aggressive cop.
While the internet is still raging with the misinformation that the new bill would make it a felony to record police, encouraging readers to call the governor and ask him to veto it, it doesn’t hurt to call Governor Quinn’s office to address the real concerns of the bill, including the restriction on surreptitiously recording public officials in public as well as the disparity in sentencing when it comes to recording public officials.
Because otherwise, he will just blow you off as being uninformed about the bill.
But don’t expect much of a response. Earlier this week, he responded to an inquiry from PINAC researcher Mike Rekart with three paragraphs of nothing.
Dear Mike ,
Thank you for contacting my office with your concerns about SB 1342 Eavesdropping Law in Illinois. Your message has been reviewed by my staff. I value your feedback and appreciate the insight you have shared with me. Each day, as I make decisions, I take your opinion, and those of others who write and call my office, into careful consideration.
As Governor, it is always helpful to hear from residents about the issues concerning our state. Throughout my time in office, I have admired people like you who take time to provide ideas, ask questions and offer constructive criticisms. With your continued participation in our democracy, we can make the will of the people the law of the land.
Thank you again for expressing your interest in SB 1342 Eavesdropping Law. Please feel free to contact me in the future. My office phone numbers are (217) 782-0244 and (312) 814-2121. You can also stay updated on state programs and services by subscribing to my E- Newsletter by clicking here.
Below is a statement from Mickey Osterreicher of the National Press Photographers Association, one of the national organizations that fought against the previous law:
“It is my understanding that despite the concerns expressed in the article you sent to me, the ACLU of Illinois worked closely with members of the legislature to draft Senate bill 1342 which restores all-party consent for audio recording conversations in Illinois but also provides needed protections for civilians audio recording public officials doing their public duty in a public place.
“The critical language in that protection is found under the definitional section 14-1(d) “Private Conversations,” the pertinent part of which (for this discussion) states: ‘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.’”
“So while protecting the reasonable expectation of privacy in private conversations, phone calls, and electronic communications from unwanted recording or interception, the bill does not abridge the First Amendment right to record the non-private conversations of police and other government officials performing their official duties in a public place, because there is no reasonable expectation of privacy in those situation. Additionally, much like the wiretap law in Massachusetts, to be in violation of the law the recordings must also be made surreptitiously, defined under 14-1(g) as ‘obtained or made by stealth or deception, or executed through secrecy or concealment.’”
“I firmly believe that should the police try to use the new law inappropriately to create a chilling effect on the constitutional rights of citizens and journalists, it will be met with strong and swift opposition, just as it was in the case of ACLU v Alvarez.”
The ACLU, which was instrumental in striking down the last law and drafting the current bill, seems satisfied, but also has concerns as you can read below:
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. So the new statute generally provides that police, informants, or other members of the public cannot record our private conversations without our permission. Also, we cannot be arrested or prosecuted under the new statute for recording on-duty government officials who are talking to the public as part of their jobs, because those conversations are not private. The new statute respects the appellate court ruling in the case the ACLU brought against the Cook County State’s Attorney’s Office: on-duty police officers have no reasonable expectation of privacy in their conversations in public places.
Unfortunately, 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. On this basis, the ACLU of Illinois opposed the new statute.