*** UPDATED x1 *** Eavesdropping concerns
Tuesday, Dec 16, 2014 - Posted by Rich Miller
* Matt Dietrich…
A new version of the 50-year-old Illinois eavesdropping law arrived yesterday on Gov. Pat Quinn’s desk. If signed, it will let Illinois citizens record the actions of law enforcement officers on duty.
For the sake of the many social media conspiracy theorists who have spent the last several days madly posting otherwise, I will repeat: If Gov. Quinn signs this bill into law, you will be able legally to videotape police officers on duty and working in public.
I’m not sure how this caught fire and spread so quickly on Facebook and Twitter, because the whole point of the eavesdropping law revision was to remove language that made it a felony for any citizen to record a law enforcement officer on duty. It was that portion of the eavesdropping law that made it both unconstitutional and absurdly antiquated.
* The bill’s sponsor, Sen. Kwame Raoul, wrote this in the Sun-Times…
Under this proposed law, the public maintains the right to record police because police have no reasonable expectation of privacy while doing their job in public.
The problem with these explanations is the phrase “in public.” I asked the House sponsor of this bill after it passed whether citizens could record police officers while in their own home. That’s not exactly “public.” The sponsor said that situation could be a problem.
* So, I agree with the Illinois Policy Institute on this particular issue…
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.
* Also, Mark Wilson at FindLaw…
Illinois’ new law probably isn’t as bad as the critics claim, but its emphasis on “reasonable expectations of privacy” does mean that there will likely be disputes about enforcement, with police and citizens disagreeing over whether a conversation is private or public.
*** UPDATE *** From Ed Yohnka at the ACLU…
The eavesdropping bill on the Illinois Governor’s desk prohibits the recording of *private* conversations absent all-party consent or a warrant. It defines *private* to mean when a person intends the conversation to be private under circumstances that reasonably justify that expectation. Thus, there will be a statutory limit on recording private conversations, and no limit at all on recording non-private conversations.
When is a conversation private? That term in the Illinois statute is the same or nearly the same as similar terms in the federal eavesdropping statute and scores of state eavesdropping statutes that have been on the books for many decades. A host of judicial decisions, interpreting these statues and also the Fourth Amendment, have addressed whether people have a reasonable expectation of privacy in a variety of conversations involving a variety of circumstances. If the Illinois Governor signs the bill on his desk, the new statute’s line (was the conversation private?) will be interpreted in light of this well-developed body of judicial precedent.
When do police have a reasonable expectation of privacy? Police clearly do not have a reasonable expectation of privacy against recording by civilians when they are on-duty in a public places and speaking at an ordinary volume. This was a holding of *ACLU v. Alvarez*, which protected the First Amendment right of civilians to audio record such non-private police conversations. But this is just one of the many circumstances in which police do not have a reasonable expectation of privacy. On-duty police generally will have no reasonable expectation of privacy when they speak to civilians, including in many non-public places. For example, police cannot reasonably expect to be free from audio recording by a home owner when they enter a private home to enforce a warrant, or by a suspect being interrogated inside a stationhouse interrogation room. *ACLU v. Alvarez* is just one of the many judicial decisions finding that on-duty police lacked a reasonable expectation of privacy against recording by the civilians they speak with. On the other hand, two off-duty police officers might have a reasonable expectation of privacy when they speak together in a squad car with the windows up and no one else present, or whisper to each other in a deserted public park. Whether the location of the conversation is public or private is one relevant factor among many in deciding whether there was a reasonable expectation of privacy.
When do other government employees have a reasonable expectation of privacy? In light of the case law, on-duty government officials who knowingly speak with members of the public as part of the performance of their government jobs will generally not have a reasonable expectation of privacy against civilian recording of those conversations.
- Bourbonrich - Tuesday, Dec 16, 14 @ 11:16 am:
Since police officers are never officially off the clock, would that mean they never have an expectation of privacy wherever they are if they are acting in police capacity?
- VanillaMan - Tuesday, Dec 16, 14 @ 11:16 am:
It is a nonsense bill if you cannot record a police officer going through your own home. The violating of civil rights by police occur in a private home. The recognition of being incarcerated or subjected to police sanctions occurs after the officers enter your private residence.
No one answers their door recording the event. Not having private homes covered under this bill prevents us recording an officer once they force themselves into your home.
That’s screwed up.
The intention may have been to update this kind of activity, but the resulting bill is a mess that fails in a major way.
Veto it.
- RonOglesby - Now in TX - Tuesday, Dec 16, 14 @ 11:21 am:
The in-public part is simply silly. The one woman was charged for recording a cop, at his desk, with just her and him talking… Is that “in public”? no.
Illinois, we pass laws that are hard to understand because that is the point!
- Norseman - Tuesday, Dec 16, 14 @ 11:22 am:
This looks like one of those bills that was crafted to appear to address everyone’s concerns through creative wordsmithing. In the end it creates more problems than solutions. Veto this and spend more time on it this spring.
- RonOglesby - Now in TX - Tuesday, Dec 16, 14 @ 11:25 am:
Yes Tiawanda Moore… Recording a police officer who would probably still try to say that the recording was not done in public. One of the reason the law was struck down, yet still wont cover the situation.
- Com Prof - Tuesday, Dec 16, 14 @ 11:55 am:
This bill is begging for a lawsuit to clarify it.
- Carl Nyberg - Tuesday, Dec 16, 14 @ 12:08 pm:
The expectation of privacy in a home belongs to the people who live there, not cops who are there.
This seems pretty obvious, right?
- Carl Nyberg - Tuesday, Dec 16, 14 @ 12:14 pm:
A police officer at her/his desk having a private conversation with a personal friend probably has an expectation of privacy.
If a member of the public has been invited to sit at the desk, then the expectation of privacy goes away.
That is, one shouldn’t be able to go into a police station and simply start a recording device to snoop on cops, but if the cops have invited someone into the station the subject should have a right to record the interactions “for quality assurance” purposes.
If someone has gone to the police to report a crime or register a complaint or concern, why shouldn’t this be recorded?
Cops need to up their games. If they mistreat citizens, the public should know about this.
- Wordslinger - Tuesday, Dec 16, 14 @ 12:49 pm:
How can police have an expectation of privacy in performing their public duties?
- Yellow Dog Democrat - Tuesday, Dec 16, 14 @ 1:05 pm:
=== I’m not sure how this caught fire and spread so quickly on Facebook and Twitter ===
My bad.
- anon - Tuesday, Dec 16, 14 @ 1:05 pm:
Want to show someone a text message you got on your phone, think twice because that is a class 4 felony as well unless the person who sent the text consents to that communication being disclosed.
- Chris - Tuesday, Dec 16, 14 @ 1:07 pm:
“Cops need to up their games. If they mistreat citizens, the public should know about this.”
Many on the Chicago force would interpret that as you relinquishing your expectation that CPD should ’serve and protect’ you, Carl. How dare you question their treatment of ‘citizens’–they only mistreat criminals and complainers.
- Toure's Latte - Tuesday, Dec 16, 14 @ 1:18 pm:
More vague sloppy language in a bill. Shocking.
- Matt Jones - Tuesday, Dec 16, 14 @ 1:18 pm:
The concerning language, “reasonably expectation of privacy” is necessary in order to have a valid two party consent statute, which is championed by the ACLU and the state bar. The easy bright line is the adoption of a one party consent statute like 30 some states and the feds. The inclusion of the “surrupticious” language makes this pretty workable…..openly record and there is no violation. As I testified, there are parts of this statute that may not pass constitutional muster, but not for any of the reasons being bantied about.
- PolPal56 - Tuesday, Dec 16, 14 @ 1:22 pm:
Record now and worry about the legality later. Sadly, it’s safer that way.
I would never allow a police officer inside my home, except by necessity or warrant. I was advised by a friend who teaches law to exit my house and talk to the officer outside. “Never put yourself in a position where the officer knows there are no witnesses,” she said.
- Rebel13 - Tuesday, Dec 16, 14 @ 2:38 pm:
Simple, post sign on front door “Premises under video and audio surveillance”
- Formerly Known As... - Tuesday, Dec 16, 14 @ 3:03 pm:
This bill has more gaps and holes in it than a slice of swiss cheese.
Please, take a little more time and re-do this one in a more thorough and better manner.
- anon - Tuesday, Dec 16, 14 @ 3:37 pm:
To follow up on Mr. Yohnka’s comments, there is no reasonable expectation of privacy that what you say to another person will remain private and not be repeated by that other party. If the bill is adopting the 4th amendment’s exception for information which is knowingly disclosed to third parties, then haven’t we just become a one-party state as long as the person recording is a member of that conversation? Forget about the police encounter and just look at the definition of the crime for a minute — If you share any electronic communication without the consent of all parties it’s a felony.
- dupage dan - Tuesday, Dec 16, 14 @ 4:27 pm:
Nyberg is right. The expectation of privacy in the home belongs to the resident of same. Will it take more stuff to happen before there is clarity to that?
- D.P.Gumby - Tuesday, Dec 16, 14 @ 4:44 pm:
If it takes this much explanation, it’s a bad bill. Veto, please.
- walker - Tuesday, Dec 16, 14 @ 5:37 pm:
This bill is much better than existing law.
It clearly needs added clarification in the language.
Is this the best case for an amendatory veto, which will then be taken seriously by the GA?
- Anon - Tuesday, Dec 16, 14 @ 7:52 pm:
Sorry to disagree with you Walker but it’s not better than the current law because there is no current law since it was held unconstitutional (for the second time). Right now you can record the police anywhere, even in your house. Right now, the police can record using body cameras which everyone wants. Passage of this law restricts recording police to only public places and prohibits the police from using body cameras unless all parties consent. If this bill is the best that the legislature can do then no law is better than this.
- Rhino Slider - Wednesday, Dec 17, 14 @ 1:18 am:
Maybe its a stretch, but I think North Korea may have violated Sony’s reasonable expectation of privacy. The North Koreans may end up at County when they come to blow up the cinemas.
- anon - Wednesday, Dec 17, 14 @ 8:26 am:
The rationale behind the ACLU v. Alvarez decision was that there is a First Amendment right to record all public officials while they are in the performance of their duties, not just the police. This bill still makes it a Class 4 felony, and in some cases, a class 1 felony, to record any public officials that are not police officers without their consent. For an organization that bills itself as the “principal protector of constitutional rights”, the ACLU should be ashamed of themselves for supporting this bill. When “well this is all we could get out of committee” or “the speaker wouldn’t call the bill unless” trump the First Amendment, it’s a sad day for Illinois and the ACLU.
- Mister M - Wednesday, Dec 17, 14 @ 10:19 am:
just nit-pickin’….why do folks still use “videotape” when that recording method is not commonly used these days?