Illinois Supreme Court Overturns Insane Recording Laws

from the i-hear-you dept

Tue, Mar 25th 2014 2:33pm — Timothy Geigner

When it comes to insane bans on recording police and public officials, the granddaddy of them all has always been Illinois' eavesdropping law, which made it a federal crime to surreptitiously record any public official, even if they were amongst the public while performing their duties. The law was abused with such disregard for the Bill of Rights that court after court ruled the law unconstitutional. Those cases primarily dealt with the recording of law enforcement while performing their duties, something which ought to be a national right, given the ubiquity of cameras that are recording public citizens.

But now the Illinois Supreme Court has gone further, extending the overturning of the law such that it's no longer just law enforcement that is free to be recorded.

Today's decision(PDF) extends that analysis to other public officials as well as private citizens when they do not have a reasonable expectation of privacy. The justices note that the eavesdropping ban "criminalizes a wide range of innocent conduct," including "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. None of these examples implicate privacy interests, yet the statute makes it a felony to audio record each one. Judged in terms of the legislative purpose of protecting conversational privacy, the statute's scope is simply too broad."

It's an immensely satisfying decision that turns the country's most draconian anti-recording law on its head. Illinois politics being what they are, there may be no place in the country that needs recordings of public officials more than this state I call home. Attempts to criminalize such recordings in a way that went so far beyond privacy concerns were clearly an attempt to keep the local population at bay while corruption and illegality raged on. More impressively, the court specifically weighed the public's free speech rights against any concerns by public officials and found for the common citizen.

Because the eavesdropping ban "burdens substantially more speech than is necessary to serve a legitimate state interest in protecting conversational privacy," the court concludes, "it does not survive intermediate scrutiny. We hold that the recording provision is unconstitutional on its face because a substantial number of its applications violate the first amendment."

And so you can now record interactions with the folks whose salary you pay via taxes in the Land of Lincoln. Frankly, for a state known for corrupt public "servants", this has been a long time coming.

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Filed Under: eavesdropping, illinois, police, recordings

28 Comments

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jackn, 25 Mar 2014 @ 2:43pm

I probably missing something, but how can a state law make something a federal crime?
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MondoGordo (profile), 25 Mar 2014 @ 2:45pm

Re:
No ... that's a good question ... perhaps Tim was being figurative ?
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kenichi tanaka (profile), 25 Mar 2014 @ 3:06pm

And yet public officials will continue acting like it's still against the law, as police officers keep routinely doing.
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Anonymous Coward, 25 Mar 2014 @ 3:17pm

Maybe he used federal instead of felony.
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That One Guy (profile), 25 Mar 2014 @ 3:19pm

Re:
Sadly true, a law making such actions legal means nothing as long as the police and others face no penalty for continuing to treat such actions as illegal.
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Randy Moore, 25 Mar 2014 @ 3:24pm

Re:
Felony is correct. The eavsdropping law w made it a felony to record conversations unless all parties consented.
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Anonymous Coward, 25 Mar 2014 @ 3:39pm

Cue Police departments 'ensuring that once our lawyers have fully evaluated the implications if this ruling and then start disseminating on-going guidance to our officers over the next 2 - 3 years'

Meanwhile we'll haul yo' ass to jail anyway 'just in case' we can find another charge to justify it
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Miko, 25 Mar 2014 @ 3:42pm

Lawyer
I had a discussion with a lawyer a few years back about this very topic. I told him that if any Illinois law was unconstitutional, this was it. He said, not so fast. No one has taken this to the State Supreme Court, so you couldn't be sure. I said I would happily go around taking photos of cops if would represent me on a contingency basis. That is, if we won he could apply for court fees from the Supremes. Of course, he said no way.

Ran into him recently, and brought the matter up again. He said, I guess you were right.
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Nick (profile), 25 Mar 2014 @ 4:53pm

I'm glad for this, but I'm actually more worried they are just clearing the hurdles to allow England-style cameras-everywhere approach to mass surveillance.
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Anonymous Coward, 26 Mar 2014 @ 2:50am

Re:
Many of the English cameras are privately owned, and while the police can get the footage, they have to go to the owner to get it. Part of any major incident investigation is the collecting and analyzing of the footage of relevant cameras. This means the cameras are no more a threat to privacy than the people who own them, and they do not allow the police to track someone ion real time.
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Anonymous Coward, 26 Mar 2014 @ 7:52am

Re: Re:
Yea' I bet he was literally being figurative.
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Ninja (profile), 26 Mar 2014 @ 11:24am

Re: Watch your step anyway
Indeed. But now you have a Supreme Court ruling on your side. And law enforcement abuse will likely be punished much more often (even if it is the single abuse of not letting people record police activity).

For those that like catching law enforcement misbehavior it could be nice to walk around with a copy of that decision ;)
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Al (profile), 26 Mar 2014 @ 12:01pm

Re: Re:
Get this 3/25 we had some vandalism in the neighborhood. Previously we have had thefts, break ins, home invasions you name it. Our home was entered while we were home and I have 2-150lb dogs and the perp knew it. I put up cameras, yes I have a check box for audio and yes I own guns, since the police aren't fixing the problem I figured cameras may help avoid future problems and a possible tragedy. My neighbor had some vandalism, I caught a bit of it on my cameras and it included audio. I called the police to see if that would assist them. The idiot in charge of the two that came, first response after viewing was, you know audio recording is illegal right? I told him I could turn it down for him if he wanted, he didn't like that response and asked if I could shut it off and I said yes I could but no I wouldn't, it's my property and you should not expect rights to privacy on my property. His subordinate thought it was pretty funny. The asshole of the group looked up and realized he was standing in front of one of my cameras and simply got in his vehicle and left. So some kid will end up being on the wrong end of a homeowners gun one day because this idiot didn't like the fact that he was offered evidence and it contained audio. It really wasn't go do video but it's possible it could have been used, the more important fact is that it was outright dismissed because he looked at me as the criminal and not the victim, all while they record anything you do interacting with them. Police will wonder some day when they need assistance why people will walk on by and not want to be involved or we take matters into their own hands.
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musterion (profile), 26 Mar 2014 @ 12:13pm

Re:
I think, perhaps, he meant a felony crime vs a misdemeanor.
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btr1701 (profile), 26 Mar 2014 @ 4:25pm

Federal Crime
> The granddaddy of them all has always been
> Illinois' eavesdropping law, which made it
> a federal crime to surreptitiously record
> any public official

That's just not accurate at all. The State of Illinois has no legal authority or ability to make something a federal crime. Only the U.S. Congress can pass laws criminalizing actions at the federal level.
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btrussell (profile), 26 Mar 2014 @ 6:20pm

Re: Re:
Laws do not make things legal. Laws make things illegal.

Proof: Abolish all laws, now make one that allows me to do something that I can't already do.
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That One Guy (profile), 26 Mar 2014 @ 6:46pm

Re: Re: Re:
True, should have said 'A ruling clarifying that such actions are legal...'
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richard40 (profile), 27 Mar 2014 @ 11:11am

Re:
The article probably should have said felony, rather than federal crime.
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Trevor, 27 Mar 2014 @ 3:17pm

Re: btrussell
> Proof: Abolish all laws, now make one that allows me to
> do something that I can't already do.

That's not a proof at all, it's a sophism. Your requirement "to do something that I can't already do" is only there to deceive, it has nothing to do with the idea that laws can make things legal.

Laws make things legal all the time. Let's take a famous example:
"A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."
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btrussell (profile), 28 Mar 2014 @ 5:34am

Re: Re: btrussell
In other words, you cannot make a law PROHIBITING this action.
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Joe, 31 Mar 2014 @ 4:10am

Re:
Think: Gun laws & felons.
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Anonymous Coward, 10 Dec 2014 @ 8:40am

We can also stop this bill by calling the office of Illinois governor, Pat Quinn, at 312-814-2121, and demand that he veto the Amendment to Senate Bill 1342.

I called. I explained everything wrong with the bill. Everyone in Illinois should call and do the same. It Literally only took 3 minutes.
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clliftz, 17 Dec 2014 @ 5:03pm

Federal crime is appropriate depiction.
State law violates ones constitution rights.
The courts needn't define penalties that are well established by presedent.
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clliftz, 17 Dec 2014 @ 5:21pm

Oooppps
I see
The state made it a federal crime......
I was saying that the states action
Is a federal crime.
I don't know how a state could make something a federal crime
Their misconstruction of federal law as justification of their privacy law. And a purported violationof a politicians rights while acting under color of law . May give raise to a violation of federal law. This could possibly extend to law enforcement as well.
So "made it a federal law" seems accurate either way...
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RPaul, 12 May 2015 @ 3:35am

Help Fight Back
So now you all know about the underhanded way Illinois passed the law about discouraging the recording of police brutality, then go to this link and veto against Amendment to SB 1342: https://cms.fightforthefuture.org/illinois-just-made-it-felony-film-cops/

It is very tough right now for ordinary citizen to fight for their rights especially when there is so much police corruption. Even now as I type, Texas will pass a bill about recording the police!

If you think police corruption in all levels of authority as well as state government is bad, then imagine the damage this will cause if we let this pass.
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Anonymous Coward, 24 Oct 2015 @ 8:57pm

as of 10-20-2015 Illinois state police tried to say my trucks recording system is illegal because it records vid front of the truck and audio in the cab which recorded a jerk blinding me with a high power spotlight as i was driving causing me to stop
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Anonymous Coward, 24 Oct 2015 @ 9:07pm

as of 10-20-2015 Illinois state police tried to say my trucks recording system is illegal because it records vid front of the truck and audio in the cab which recorded a jerk blinding me with a high power spotlight as i was driving causing me to stop i added the camera system after my second accident that was deemed not my fault so the next one i wanted on vid so my case would be easy and clear what happened. and no it was not a officer that used the spot light it was a normal person trying to cause a accident at 6am sadly the police said nothing they could do... go figure
but if i did swerve and wreck it would probily been my fault sad it has gotten this messed up
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Anonymous Coward, 7 Mar 2019 @ 8:20am

Re:
question how can we make this a federal law
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