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Nekritz wants state “eavesdropping” law changed

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Illinois

* A state legislator wants to change a particularly onerous Illinois law, which makes it a felony punishable by up to 15 years in prison to make an audio recording of an on-duty police officer…

With the constitutionality of Illinois’ eavesdropping law already facing several court challenges, a Democratic state representative from Northbrook has filed a bill that would allow people to audio-record a police officer working in public without the officer’s consent.

“I believe that the existing statute is a significant intrusion into First Amendment rights, so with the prosecutions and the court cases that have been reported about, it just seemed that this is a problem in need of a swift solution,” Rep. Elaine Nekritz said in an interview Thursday.

Illinois’ eavesdropping law is one of the strictest in the country and makes it illegal to audio-record police without their consent, even when they’re working in public. The state is one of a handful in which it is illegal to record audio of public conversations without the permission of everyone involved.

* From the bill’s synopsis…

Exempts from an eavesdropping violation the recording of a peace officer who is performing a public duty in a public place and speaking at a volume audible to the unassisted human ear.

* The Sun-Times editorialized in favor of the legislation…

Police officers have a tough job, and the thought of a passel of citizens with microphones turning an ordinary arrest into something resembling a huge flashbulb-popping press conference might well annoy them. They might also worry that troublemakers will sneakily edit recordings to give a false impression of how police acted. But that hasn’t been a problem in other states where eavesdropping laws are more relaxed.

This is an area where the law has to catch up with technology. Recording devices are everywhere, even in such places as Syria, where citizens have captured images of their struggle for democracy and beamed them to the world.

Here in America, we increasingly are told we have no expectation of privacy when we are in public and that our every move may legally be recorded by surveillance cameras.

In such an environment, police officers should not expect that their actions while on duty are private.

“I don’t know why a public official on public business on public property has any expectation of privacy,” Nekritz said.

The issue of recording police came to a head when a Chicago woman, Tiawanda Moore, made a recording with her BlackBerry because she thought two police internal affairs investigations were trying to talk her into dropping a sexual harassment complaint against a patrol officer. That would have seemed to fit an exemption under the current law, which permits a citizen to audio-record police officers if the citizen believes the officers are breaking the law. But Moore was charged with a felony.

In the end, she was acquitted, and last week she filed a lawsuit. But ask yourself this. If attached to your right to turn on a recording device is the very real possibility you could be sent to prison for up to 15 years, how much of a right does that feel like? Most people would be hesitant to assert their rights in that scenario. The Moore case illuminated the flaw in the current law.

* Also from the bill…

Provides that for the purposes of the telephone solicitation and marketing and opinion research exception to the eavesdropping statute, permits a non-employee to record the conversation if the corporation or other business entity announces it may record or listen to a telephone conversation with a non-employee.

That’s also perfectly reasonable. If they’re recording me, I should be able to record them.

posted by Rich Miller
Thursday, Jan 19, 12 @ 6:58 am

Comments

Rep. Nekritz should be commended. The law should be changed.
He may want to look further. Suspect that the cops are in violation of the current statute. Think a lot of departments record without consent all calls ( not just 911 Calls as authorized ).

Comment by x ace Thursday, Jan 19, 12 @ 7:17 am
The prohibition was foisted by a legislature afraid of wire-wearing snitches and blackmailers. It should never have been allowed by the courts in the first place. And it is illogical as well as immoral that police can suppress potential evidence of their misconduct.

Now we have a chance to fix this, and Quinn and Simon should get out in front as being in favor of this. Quinn’s been mum because he’s afraid of losing police support. Time to man up and do what’s right.

Comment by Gregor Thursday, Jan 19, 12 @ 7:18 am
Good.

Comment by Dirt Digger Thursday, Jan 19, 12 @ 8:22 am
“Quis custodiet ipsos custodes?”
– Juvenal, Satires (Satire VI, lines 347–8)

Comment by MrJM Thursday, Jan 19, 12 @ 8:24 am
I agree with Rep. Nekritz on this issue. If the police are recording and taping you, you should be able to simultaneously record and tape them.

That way if a tape gets misplaced . . .

Comment by Louis G. Atsaves Thursday, Jan 19, 12 @ 8:27 am
It’s about time. The vote on this should be very interesting (assuming it gets to a vote). It will also be interesting to see how law enforcement argues against the bill.

Comment by Kerfuffle Thursday, Jan 19, 12 @ 8:37 am
Is there really an expectation of privacy in public anymore?

Comment by wordslinger Thursday, Jan 19, 12 @ 8:51 am
It’s more than reasonable. It’s completly fair.

Comment by Ahoy Thursday, Jan 19, 12 @ 9:09 am
I believe that this effort should be expanded to include audio and video recording of police performing public duties — actually any official while performing public duties.

Comment by Anonymous Thursday, Jan 19, 12 @ 9:32 am
Wait until some legislator is recorded doing the” people’s” business. One party consent will once again be illegal as fast as you can say Rod Blagojevich.

Comment by Leave a Light on George Thursday, Jan 19, 12 @ 9:39 am
Thank you Elaine Nekritz. Most reps are afraid to lead on anything which could be characterized, (falsly in this case), as diminishing “law and order”.

Comment by mark walker Thursday, Jan 19, 12 @ 9:53 am
“I don’t know why a public official on public business on public property has any expectation of privacy,” Nekritz said.

Than Nekritz should have no problem when I seek to record any conversation with her. WE are the only state that has this eavesdropping law.

Comment by Anonymouse Thursday, Jan 19, 12 @ 10:23 am
STUPID legislation-unconstitutional and immoral

Comment by downstate commissioner Thursday, Jan 19, 12 @ 10:33 am
This should be expanded to include allowing cameras and recording equipment in the court room.

Comment by transplant Thursday, Jan 19, 12 @ 11:04 am
=== Than Nekritz should have no problem when I seek to record any conversation with her. ===

I think you’ll find that elected officials in 2012 are already accustomed to this. And if not, they should be. Anything they say in public - whether that’s at a news conference, on the House/Senate floor, or in a corridor of the Capitol when speaking to a constituent - is certainly subject to recording and widespread public dissemination.

Comment by Coach Thursday, Jan 19, 12 @ 11:04 am
This problem is not unique to police officers.

I once suggested to some folks that the best way to protect hospitals and doctors from “frivolous lawsuits” was to video and audio record every surgery in Illinois.

Man, you should have seen the medical society flip out.

Comment by Yellow Dog Democrat Thursday, Jan 19, 12 @ 11:04 am
=== This should be expanded to include allowing cameras and recording equipment in the court room. ===

That’s an issue for the Supreme Court to consider. I don’t believe there’s anything the legislature might do about it.

Comment by Coach Thursday, Jan 19, 12 @ 11:06 am
=== Than Nekritz should have no problem when I seek to record any conversation with her. WE are the only state that has this eavesdropping law. ===

No, not any conversation. You cannot go an secretly record her in her house, for instance. But if she is holding a town hall forum, you are certainly free to go openly film her. Police offices on the street, performing their duties are subject to being filmed. Remember the UC Davis police pepper spraying the students a couple months back — it would be illegal to film them in Illinois. Rmember the Rodney King beating by police — illegal to film in Illinois.

Comment by Just Observing Thursday, Jan 19, 12 @ 11:09 am
=== STUPID legislation-unconstitutional and immoral ===

I really hope you are not a “Commissioner” or hold elected office — I don’t think you understand the constitution or the meaning of immoral. What specifically is unconstitutional or immoral?

Comment by Just Observing Thursday, Jan 19, 12 @ 11:11 am
I Initiated this effort at the Illinois State Bar Assn. We atually proposed allowing citizens to record police anywhere. Lt. Birge was beating “confessions” in the basement of the police station. One man served over 20 years for a crime that he did not commit as a result. Birge is now in Federal prison for these atrocities. Even if the current watered-down bill passes, the police can still do this. Further, if the police come into your home and you record them, it’s still a class 1 felony. As a further note, if you file a complaint against the police, you have to do so under oath. If enough police saying you are lying, then they get you on perjury. If you record the incident, then it’s a class 1 felony. But, of course, they can at will record you. If the tapes show that they were completely out of order and acting illegally, they can simply erase the tape. Our original bill (of recording police anywhere) should be the law.After all, they are PUBLIC servants.

Comment by Eugene Friedman/Gene F. Thursday, Jan 19, 12 @ 11:13 am
Wrong, don’t use other states as examples. We are the onl;y state that is not one party consent. Our legislators have it this way so that we cannot record them. I’m not talking about a public press conference. I’m talking about when they make phone calls to hospitals demanding money. I’m talking pay to play. EVERY other state is one party consent but Illinois. Look it up.

Comment by Anonymouse Thursday, Jan 19, 12 @ 11:15 am
Friedman,

I sincerely hope you are not a lawyer but you very well may be in Illinois. First it’s Burge, not birge. Burge is in prison for lying under oath not any beating I hop a lawyer would know the difference. If you file a complaint against the police you do have to sign an affidavit just like the police have to do to arrest you ( the complaint). Please cite one case where someone has been charged with perjury for making a complaint against a police officer. Ps the police cannot at will record you their are very strict rules to recording citizens. Traffic stops and murder investigations. Other wise court approval is required. Plus the recording police law which is stupid is rarely enforced just look at the occupy protests or the past war protest many of the protesters were out filming the police with no arrests.

Comment by Fed up Thursday, Jan 19, 12 @ 11:39 am
The good news is that if folks edit a tape to make a cop look bad that can be exposed. Some in law enforcement were unhappy with dash cams. It has helped as much as it has caused problems. Same with taped interrogations and confessions. Public taping has also been beneficial to good cops as much as it has shown the bad ones. There will likely be problems but life is full of challenges.

Comment by dupage dan Thursday, Jan 19, 12 @ 11:50 am
Dash-cams are an excellent example of why this is a good law and why the old existing law is stupid and exists only because cops fear being having their misconduct captured like the Rodney King or the off-duty cop in the barroom. It’s the same reason cops and state’s attys fight against having interrogations video taped despite the enormity of false confessions that result from police interrogation techniques. That should be the next legislation.

Comment by D.P. Gumby Thursday, Jan 19, 12 @ 12:14 pm
I don’t see the value of “taped confessions” unless you get the whole “taped interrogation.” Those have been common in other states for some time.

Comment by wordslinger Thursday, Jan 19, 12 @ 12:17 pm
The Speaker has previously killed such bills. I hope he allows this Nekritz bill a fair hearing. It should not be a felony to tape an arrest.

Comment by reformer Thursday, Jan 19, 12 @ 12:36 pm
@Wordslinger - law enforcement in Illinois have been required to videotape interrogations and confessions in homicide cases since 2003, thanks to Madigan.

As i recall, his interest came after a 6 and 8 year-old falsely confessed to murder under interrogation.

I suspect that Madigan will be taking a fresh look at eavesdropping laws as well. Just don’t expect him to rush in like Joe Walsh. Madigan is a policy wonk at heart.

Speaking of which, what does the AG have to say?

Comment by Yellow Dog Democrat Thursday, Jan 19, 12 @ 1:10 pm
= illegal to film in Illinois.=

No it is not. Only AUDIO recording is illegal. Video is fine.

We are one if not the only state without one party consent to audio taping. Over the years this has been a great hinderance to law enforcement in Illinois. It is one reason the feds have to clean up so many of our messes. They are not similarly hindered as Illinois law enforcement is.

Comment by Leave a Light on George Thursday, Jan 19, 12 @ 2:08 pm
Though we in Illinois can still technically video record police officers (it’s only audio recording that’s illegal), it’s still very easy for a police officer to intimidate and make your turn off your camera under the guise of interfering with police or obstructing justice.

Comment by Anonymous Thursday, Jan 19, 12 @ 3:00 pm
this type of case cuts to the heart of it. Worth a read:

http://peacefreedomprosperity.com/5618/federal-court-rules-videotaping-police-is-a-first-amendment-right/

I’am all for it

Comment by Todd Thursday, Jan 19, 12 @ 3:08 pm
Here’s where the law came from:

http://mchenrycountyblog.com/2011/02/08/of-eavesdropping-and-irony-at-the-paul-simon-institute/

Hint- it was sponsored by a “reformer.”

Comment by Cal Skinner Thursday, Jan 19, 12 @ 3:15 pm
Been in law enforcment for 25+ years, doing homicide investigations for 15. Recording interrogations/interviews for years and never been “harmed” by recording. Defense attorneys may not be big fans of recording, many of their old arguments (threat, intimidation, promises)can’t be used with recording. Don’t know of any investigator opposed to recording their work.
Refer to Operation Gray Lord as why many politicians are leery of recording. I’m all in favor of one party consent, would make my job much easier, especially public corruption complaints.

Comment by Copper Thursday, Jan 19, 12 @ 6:32 pm
Long overdue. One of many blots on our state’s reputation.

Comment by wishbone Thursday, Jan 19, 12 @ 10:39 pm