Illinois Legislature Passes Recording Ban To Protect Public Servants - Not The Public

from the the-fix-that-maintained-the-status-quo dept

Wed, Dec 10th 2014 12:40pm — Tim Cushing

Illinois' awful "eavesdropping" law was mostly known for being abused by cops to prosecute citizens who recorded them. This strayed pretty far from the spirit of the law (you know, actual eavesdropping). Courts, including federal courts, declared this interpretation of the law unconstitutional in various decisions and in March of this year, the state Supreme Court overturned the law completely.

Legislators have now pushed through a new version of the eavesdropping/wiretapping law -- one hopefully more compliant with the First Amendment. But those hopes will need to be tempered. The new bill, now resting on the governor's desk, doesn't do much to prevent law enforcement and other public officials from using the law as a shield against recordings.

The first indicator that this bill isn't meant to fix what needed to be fixed lies in its genesis.

[I]t was introduced on Tuesday, Dec. 2, as an amendment to an existing bill on a completely different subject. The amendment removed all of the bill’s previous content and replaced it with the new ban on recording. The House passed it the following day, and the Senate passed it the day after that. So the people who would have cared most about this bill probably didn’t notice it in time to object.

Note that Illinois Policy's writers (Jacob Huebert and Bryan Jackson-Green) refer to the new bill as a "recording ban." They aren't kidding. The language leaves key stipulations open to interpretation.

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.

As we know, public officials performing official duties aren't afforded an expectation of privacy. But what happens when an officer enters a home or business? Once out of public areas, do officials obtain an expectation of privacy? What about phone calls to and from public officials? Is the fact that it occurs on a "private" line enough to make any recordings a criminal offense? The bill simply doesn't say, apparently leaving this important distinction up to various courts to decide.

The bill further acts as deterrent against recording public officials by handing out inequitable penalties for violations.

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.

Citizens have long known that laws work differently for the public than they do for their public servants. This legislation goes the extra distance to spell it out in black and white. According to the wording, public officials' privacy is worth more than private citizens' privacy.

Unfortunately, the legislation may pass constitutional muster because the wording can be interpreted to be protective of First Amendment activities -- even as its lack of specificity encourages interpretation to the contrary.

And there's another law enforcement bonus hidden within the bill as well, as the ACLU points out.

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.

If this bill goes through -- and there's good reason to believe it will, what with all that cherished "bipartisan support" behind it -- police officers will still be able to use the vague wording of the law in their favor. The lack of clarity invites law enforcement to take their chances on the wheel o' justice and see how the courts interpret the new statute -- a process that goes in motion long after someone's recording has been halted and charges have been filed.

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: eavesdropping, illinois, law enforcement, recording police

59 Comments

If you liked this post, you may also be interested in...

Reader Comments

Subscribe: RSS

View by: Time | Thread

RadioactiveSmurf (profile), 10 Dec 2014 @ 12:26pm

A felony! Really?!?! I feel like a felony doesn't mean what it used to mean. When recording a police officer, something perfectly legal in any sane state, ruins your life there is something massivly wrong. Maybe they should focus more on fixing their budgets and not electing corrupt politicians instead of further making a mockery of Illinois.
[ link to this | view in chronology ]
- Anonymous Coward, 10 Dec 2014 @ 1:26pm
  
  Re:
  That's the brilliant part. I bet this will make all of those recordings that got the last governor thrown in jail a felony, so the future governors are free to abuse all the things.
  [ link to this | view in chronology ]
  - Anonymous Coward, 11 Dec 2014 @ 6:59am
    
    Re: Re:
    "I bet this will make all of those recordings that got the last governor thrown in jail a felony, so the future governors are free to abuse all the things."
    
    I thought laws couldn't be applied retroactively.
    If you do something legal on Monday and it's outlawed on Tuesday, you can't be prosecuted for what you did on Monday.
    [ link to this | view in chronology ]
    - tqk (profile), 11 Dec 2014 @ 5:27pm
      
      Re: Re: Re:
      
      I bet this will make all of those recordings that got the last governor thrown in jail a felony, so the future governors are free to abuse all the things ...
      
      I thought laws couldn't be applied retroactively.
      
      You didn't even try to understand what they wrote. Notice the bit about future governors? I'd give you a pass if English wasn't your first language, but I doubt that's the case. You're just lazy.
      [ link to this | view in chronology ]
Anonymous Coward, 10 Dec 2014 @ 12:49pm

another nail in the coffin of democracy then.

Things like this is what will lead to another American revolution. The more those in charge setup a tyranny against those they are supposed to be protecting but instead lord over
[ link to this | view in chronology ]
- Anonymous Coward, 10 Dec 2014 @ 2:09pm
  
  Re:
  The tree of liberty from time to time must be refreshed with the blood of patriots and tyrants.
  
  So remember... everyone that voted for an R or D or supported them for the past couple of elections have been voting to ensure that America will go to war with itself.
  
  Neither party gives a fuck about you or this nation and the current spending bill is proof that the Repukes did not deserve their victories. Don't even get me started on the demturds.
  [ link to this | view in chronology ]
  - Pragmatic, 12 Dec 2014 @ 4:14am
    
    Re: Re:
    ^^THIS^^
    [ link to this | view in chronology ]
bdj, 10 Dec 2014 @ 12:52pm

Enough already...
Let's just start calling this what it really is. The war on terror/drugs/whatever can all be combined and summed up as the WAR ON AMERICANS. Happy holidays America, your government fucking hates you...
[ link to this | view in chronology ]
- Anonymous Coward, 10 Dec 2014 @ 1:26pm
  
  Re: Enough already...
  A war on citizens.
  [ link to this | view in chronology ]
RR, 10 Dec 2014 @ 1:13pm

Broken
All four branches of the government are broken: the legislature, the executive, the judiciary, and the voters.
[ link to this | view in chronology ]
TruthHurts (profile), 10 Dec 2014 @ 1:17pm

Future ghost state..
As the mass exodus from Illinois ensues...
[ link to this | view in chronology ]
- Anonymous Coward, 10 Dec 2014 @ 1:27pm
  
  Re: Future ghost state..
  Not likely. With all Illinoisans have been through, this is hardly going to be the thing to make people leave.
  [ link to this | view in chronology ]
  - TruthHurts (profile), 10 Dec 2014 @ 1:30pm
    
    Re: Re: Future ghost state..
    Straw that broke the camels back anyone? :)
    
    People will leave, sheeple will stay.
    [ link to this | view in chronology ]
    - That One Guy (profile), 10 Dec 2014 @ 1:35pm
      
      Re: Re: Re: Future ghost state..
      People with large amounts of disposable income and able to find jobs out of state will leave, people without those advantages will stay.
      
      It's easy to say 'just leave the state if it's that bad', but you're ignoring the fact that something like that takes a lot of time, money, and effort to manage.
      [ link to this | view in chronology ]
    - Eric Stein, 11 Dec 2014 @ 11:53am
      
      Re: Re: Re: Future ghost state..
      I prefer to think that the sledgehammer breaks the helmets back
      [ link to this | view in chronology ]
- Anonymous Coward, 10 Dec 2014 @ 5:24pm
  
  Re: Future ghost state..
  Good leave!!!
  [ link to this | view in chronology ]
Anonymous Coward, 10 Dec 2014 @ 1:17pm

I believe it is time we stopped letting them use the term "public servants". They don't serve the public at all. Only themselves and their corrupt friends in government and big business.
[ link to this | view in chronology ]
- Anonymous Coward, 10 Dec 2014 @ 1:28pm
  
  Re:
  Public Rulers
  [ link to this | view in chronology ]
Anonymous Coward, 10 Dec 2014 @ 1:22pm

Illinois Nazis... hate 'em even more now that they're in charge.
[ link to this | view in chronology ]
- Anonymous Coward, 10 Dec 2014 @ 2:08pm
  
  Re:
  Illinazis?
  [ link to this | view in chronology ]
  - Eric Stein, 11 Dec 2014 @ 11:38am
    
    Re: Re:
    didn't you see "The Blues Brothers"
    
    get back to us when we launch our first automatically dissolving tanker truck full of unpleasant odors in Chicago.
    
    or we could just give the whole damn state to Canada.
    [ link to this | view in chronology ]
Uriel-238 (profile), 10 Dec 2014 @ 1:25pm

To some degree, this is moot...
...given that law enforcement officers seem to go unindicted even when there is plenty of video recorded of their crimes.

One wonders how long it will be before the typical response to a domestic violence call is to summarily execute all the parties involved. The paperwork will certainly be cleaner.

In any case, it's a good time to not call the cops. It's a bad time to draw their attention for any reason.
[ link to this | view in chronology ]
- That One Guy (profile), 10 Dec 2014 @ 1:33pm
  
  Re: To some degree, this is moot...
  In any case, it's a good time to not call the cops.'
  
  Is there any good time to call the cops? I've read a good number of comments and articles that seem to say that them showing up more often than not seems to make whatever situation was already going on worse.
  
  If I got mugged for example, successfuly or not, I certainly wouldn't call the cops. My day sucked enough at that point, why would I want to make it worse?
  [ link to this | view in chronology ]
  - Anonymous Coward, 10 Dec 2014 @ 1:53pm
    
    Re: Re: To some degree, this is moot...
    What's the point? You're not going to get your stuff back and they're just going to do some paperwork and forget about it.
    [ link to this | view in chronology ]
  - Anonymous Coward, 10 Dec 2014 @ 1:57pm
    
    Re: Re: To some degree, this is moot...
    Is there any good time to call the cops?
    
    Probably five years ago, I was driving down the freeway——and swerved to avoid a nasty-sharp piece of jagged metal in the middle of the right hand lane.
    
    Now, thirty years ago, for sure, I would've gotten home, then called the cops and told 'em the milepost, and expected that a trooper would eventually make his way onto that stretch of interstate—flip on his lights—walk out into the freeway—and make the traveling public just a little bit safer that day.
    
    But five years ago? Not my problem. I just hope that jagged piece of metal didn't wind up causing somebody a blowout and a rollover. But. Really. Not my problem. Not gonna call the cops. No.
    [ link to this | view in chronology ]
  - John Fenderson (profile), 10 Dec 2014 @ 3:48pm
    
    Re: Re: To some degree, this is moot...
    "Is there any good time to call the cops?"
    
    I would call them for situations that are both immediate and beyond what normal citizens could handle. Like a madman shooting things up, for example. I wouldn't bother calling them for anything else, though, especially not to report a crime that's already done being committed.
    [ link to this | view in chronology ]
    - Anonymous Anonymous Coward, 10 Dec 2014 @ 4:17pm
      
      Re: Re: Re: To some degree, this is moot...
      I do not disagree with your sentiment, however there is a caveat. For example, if, let's say, your house was robbed while you were away, and valuable things are taken, your insurance company will not make a payment without a police report. So, we make a determination. Is the value of the property taken of greater value than the possibility of the cops answering the call with a gun drawn swat team making a false assumption that the robbers as still there and come into your home blazing away cause they thought you were the robber. In today's environment, this is not out of the question.
      
      Now how are we going to teach our children about balancing what might be over what has happened, when that decision just might bring about serious unintended consequences?
      [ link to this | view in chronology ]
      - No Name for this Use, 10 Dec 2014 @ 4:27pm
        
        Re: Re: Re: Re: To some degree, this is moot...
        This is just more examples of fascist violence.
        
        "...your insurance company will not make a payment without a police report." the state and the corporation must cooperate to condescend to the violence you have suffered.
        
        "...swat team making a false assumption..." there is no need for them to assume that there is any criminality involved to shoot you to death.
        
        That is the false assumption, that they are there to protect you in any way and not to terrorize and murder you.
        [ link to this | view in chronology ]
      - That One Guy (profile), 10 Dec 2014 @ 4:33pm
        
        Re: Re: Re: Re: To some degree, this is moot...
        Another poster on another article actually had that very thing happen to them, and according to them they went to the police station to report what had happened and get the police report, but refused to let the police do anything beyond that.
        
        No showing up looking for clues, no investigations, just enough for the police to file the report so they could give it to their insurance company.
        
        Seemed like a good way to minimize the contact they had with the police, and therefor the chance for the situation to get worse.
        [ link to this | view in chronology ]
        
        beltorak (profile), 10 Dec 2014 @ 11:15pm
        
        Re: Re: Re: Re: Re: To some degree, this is moot...
        it also seems like a process ripe for insurance fraud. i'm surprised that didn't throw up any red flags.
        [ link to this | view in chronology ]
      - Anonymous Anonymous Coward, 10 Dec 2014 @ 7:40pm
        
        Re: Re: Re: Re: To some degree, this is moot...
        Whoops. I do agree with the sentiment. That not, not only managed to creep in there, it defied my best proof reading practices. Goes to show that my proof reading practices have failed to improve after 60 some years of trying.
        [ link to this | view in chronology ]
    - That One Guy (profile), 10 Dec 2014 @ 4:37pm
      
      Re: Re: Re: To some degree, this is moot...
      Problem is though, a madman shooting things up, that's bad. Adding the police shooting things up, on top of the madman? That... doesn't exactly seem to be helping there.
      
      One nutjob with a gun firing indiscriminately around him is enough for my tastes.
      [ link to this | view in chronology ]
      - Anonymous Coward, 11 Dec 2014 @ 3:08am
        
        Re: Re: Re: Re: To some degree, this is moot...
        If you had control of a gun you could possibly save many lives.
        [ link to this | view in chronology ]
      - John Fenderson (profile), 11 Dec 2014 @ 7:57am
        
        Re: Re: Re: Re: To some degree, this is moot...
        "One nutjob with a gun firing indiscriminately around him is enough for my tastes."
        
        Well, the cops are already running around with guns anyway. Besides, what's the alternative? I would rather have the cops doing that than vigilantes. Admittedly, the difference can sometimes be slight -- but sometimes it can be great.
        [ link to this | view in chronology ]
        
        Uriel-238 (profile), 11 Dec 2014 @ 12:51pm
        
        "Better cops than vigilantes"
        Have you seen recent behavior of the cops?
        
        Bring on the gangs.
        [ link to this | view in chronology ]
- TruthHurts (profile), 10 Dec 2014 @ 1:38pm
  
  Re: To some degree, this is moot...
  I'm more concerned with when the cops start showing up and the people defend themselves pre-emptively by shooting the criminals as they enter the house.
  
  But your honor, they came in guns drawn, swat style, when we called in because our child was having breathing problems. It caused my child to panic, stop breathing - so in self defense I shot the asshole, and my child started breathing again.
  
  Yeah, I know, total bullshit logic, but I can see events that aren't such bullshit happening - escalation from both sides if the side that is supposed to always do the right thing doesn't do always do the right thing.
  [ link to this | view in chronology ]
  - Anonymous Coward, 10 Dec 2014 @ 2:12pm
    
    Re: Re: To some degree, this is moot...
    bullshit logic in a citizens defense, but it would pass muster in the defense for an officer of the law. Stupid shit like that goes on quite often and they get to contradict video evidence too.
    
    Damn nice perks if you ask me.
    [ link to this | view in chronology ]
  - No Name for this Use, 10 Dec 2014 @ 4:34pm
    
    Re: Re: To some degree, this is moot...
    "I'm more concerned with when the cops start showing up and the people defend themselves pre-emptively by shooting the criminals as they enter the house."
    
    I assume you mean shooting cops by criminals as they kick your door in with SWAT and grenades, if only it would actually happen, but the reality is that that stuff in LA in what 94 was the only time automatic weapons have been used against cops, err ever, no apologist can make up for all of the murder.
    
    Real life: babies get a flash bang to the head and no one is even taken off duty.
    [ link to this | view in chronology ]
  - That One Guy (profile), 10 Dec 2014 @ 4:42pm
    
    Re: Re: To some degree, this is moot...
    I'm more concerned with when the cops start showing up and the people defend themselves pre-emptively by shooting the criminals as they enter the house.
    
    At which point they get charged with murder/attempted murder of an officer, assuming they survive the return fire.
    
    That's not a hypothetical by the way, I'd have to go digging, but a while back someone had just that happen, police busted into his house via the window in the very early hours of the morning, he assumed he was being robbed by a bunch of armed criminals, opened fire, and is now facing jail time for defending himself and his house.
    [ link to this | view in chronology ]
    - No Name for this Use, 10 Dec 2014 @ 5:33pm
      
      Re: Re: Re: To some degree, this is moot...
      Most times those people die, it is actually rare that anyone defending themselves against state terrorists survives
      [ link to this | view in chronology ]
Peter (profile), 10 Dec 2014 @ 1:26pm

Why would ...
... honest public servants need such protection? They have nothing to hide.
The law makes sure that the rotten apples can stay in the police force and continue to break the law with no accountability at all.
[ link to this | view in chronology ]
- TruthHurts (profile), 10 Dec 2014 @ 1:43pm
  
  Re: Why would ... 1 Strike you're out law...
  Anyone who resigns or is fired from law enforcement under suspicious circumstances should be blacklisted from ever serving in law enforcement anywhere, ever again. They cannot be trusted to hold that kind of power over people, period.
  
  The criminal cops will be forced out, they will resort to their criminal nature and hurt someone else without their badges and be removed from the streets, hopefully permanently.
  
  This is why I strongly believe that anyone working for any kind of law enforcement agency should have any and all punishments for any laws broken be quadrupled.
  1 year becomes 4 years, $10,000 fine becomes a $40,000 fine, etc...
  [ link to this | view in chronology ]
  - No Name for this Use, 10 Dec 2014 @ 4:37pm
    
    Re: Re: Why would ... 1 Strike you're out law...
    The penalty for breach of trust should be the sacrifice of the first born or maybe it should be required first, I think the Greeks where on to something If you want to go to war and take others with you, you should pay and pay dearly.
    [ link to this | view in chronology ]
  - Uriel-238 (profile), 10 Dec 2014 @ 10:50pm
    
    Blacklisting officers.
    Anyone who resigns or is fired from law enforcement under suspicious circumstances should be blacklisted from ever serving in law enforcement anywhere, ever again.
    
    Should happen, maybe.
    
    Will happen, never.
    
    Usually it's pretty hard to get fired from a state position no matter how incompetent you are. But the blue brotherhood cares for its own to an even greater degree.
    
    In order to forge a properly regulated justice system, we'll have to dismantle the one we have.
    [ link to this | view in chronology ]
Anonymous Coward, 10 Dec 2014 @ 1:49pm

It's Illinois, I've learned to never trust anything that comes from that state, never to visit that state, never to spend any money on ebay/amazon/etc... with vendors from that state and never to vote for anyone from that state.
[ link to this | view in chronology ]
Personanongrata, 10 Dec 2014 @ 1:55pm

USA or USSR?
I can't remember is Illinois part of the USA or USSR?

It would seem as if the know-nothing popularity contest winners comprising the Illinois Legislature have also forgotten.
[ link to this | view in chronology ]
bob, 10 Dec 2014 @ 1:57pm

that's democracy for you
this highlights the difference between a representative democracy (what you see happening here) and a well constructed republic, which is what was envisioned by the founders.

within the republic, all the laws apply equally to all.

in any democracy, the more powerful group will vote in laws that benefit the powerful group, widening the gap between the power group and everyone lesser than them.

it's how democracy works. in this case the only difference is that the power group is the those elected as representatives in the representative democracy.

results end up being the same, no matter what kind of democracy it is.
[ link to this | view in chronology ]
- No Name for this Use, 10 Dec 2014 @ 4:45pm
  
  Re: that's democracy for you
  I'm pretty sure you don't understand what is meant by a republic, Rome did exactly what is happening in the US and destroyed itself, the rich stole all of the land and livelihoods of the citizens of Rome.
  
  "...within the republic, all the laws apply equally to all."
  
  This statement is the opposite of true, it is so untrue I don't really know how to approach discrediting it since it should be obvious to anyone with any grasp of history, how entirely untrue this is.
  
  I have not enough hands
  [ link to this | view in chronology ]
  - Pragmatic, 12 Dec 2014 @ 4:19am
    
    Re: Re: that's democracy for you
    His alternative is rule via "voluntary transactions," which works out as "rule by the rich" in practice.
    
    We've got that now!
    [ link to this | view in chronology ]
Geno0wl (profile), 10 Dec 2014 @ 2:05pm

Forgot to mention
You didn't mention the margin the House (by a 106 to 7 vote) and Senate (46 to 4) passed it by. Which is notable because of how extremely lopsided it is.
Whenever a Bill passes with near universal support, it is either a very good Bill or a very bad Bill.
And I just don't think they have the good of the public at heart here.
[ link to this | view in chronology ]
- Eric Stein, 11 Dec 2014 @ 11:50am
  
  Re: Forgot to mention
  the only margin we're concerned with in this case is 5-4
  [ link to this | view in chronology ]
No Name for this Use, 10 Dec 2014 @ 2:13pm

I want to call 911 now
Since this makes every 911 recording illegal, I hope they like class actions from victims of crime.
[ link to this | view in chronology ]
No Name for this Use, 10 Dec 2014 @ 2:15pm

Blaming the victim is the state
Response always, since they are agents of terror and violence without exception
[ link to this | view in chronology ]
DaveK (profile), 10 Dec 2014 @ 7:26pm

Simple workaround.
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.

No problem. Just declare yourself to be a self-employed researcher. Now all your recordings are business records, and we all know there's no reasonable expectation of privacy in those!
[ link to this | view in chronology ]
Coyne Tibbets (profile), 10 Dec 2014 @ 9:58pm

What's the score now?
So the new score is: State 3, citizens -3000.
[ link to this | view in chronology ]
Anonymous Coward, 11 Dec 2014 @ 4:44am

What if the conversation is between two people using sign language? Or if I record without sound, then I'm not recording any oral conversation.
[ link to this | view in chronology ]
Anonymous Howard, Cowering, 11 Dec 2014 @ 4:47am

This is a GOOD thing...
You may be looking at this from the wrong angle. Affix clear plastic signs to the inside of your back and driver's side windows with the phrase "This vehicle records its surroundings" in inch-high white letters. Then no one can say they did not know they were being recorded, and if the officer does not want to be recorded, s/he can simply decline to continue the encounter. If they tell you to turn off the recording, that indicates their knowledge that they were being recorded, and you may legally continue to do so.
[ link to this | view in chronology ]
DannyB (profile), 11 Dec 2014 @ 6:48am

Dear Illinois legislature
Haven't you heard?

If you're not doing anything wrong, then you have nothing to hide.
[ link to this | view in chronology ]
Arcan, 11 Dec 2014 @ 11:13am

Would security cameras be illegal under this?
[ link to this | view in chronology ]