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“No-party consent” is the law of the land

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Illinois

* When the Illinois Supreme Court struck down the state’s eavesdropping law in March, many rejoiced. The overly harsh felony punishment for recording clearly public conversations and events was clearly being abused by law enforcement to harass individuals who were only attempting to protect themselves.

But with the Court’s action, we’ve gone from a crazily strict “all-party consent” statute to an insane “no-party consent” situation.

Not only can I now secretly record a private conversation with you without your knowledge, I can legally record a conversation between you and someone else without either of you knowing what I’m doing.

In other words, if I had wanted to (and I didn’t… I’m just sayin’) I could’ve recorded secret legislative party caucus meetings during the spring session and there was legally nothing that anybody could’ve done about it. Again, I wouldn’t do such a thing, but I could’ve if I had wanted to.

* I meant to write about that during the last couple weeks of session to spur some action, but it just fell through the cracks, as did the legislation designed to restore some common sense protections into the law. But various disagreements between law enforcement and privacy rights activists and between the House and the Senate killed the bill.

Illinois Public Radio has more…

Ed Yohnka, with the Illinois Chapter of the American Civil Liberties Union, says he wishes the court hadn’t struck down the entire law, but sees this as an opportunity for a clean slate. Yohnka says the ACLU wants…

“The continuation of all-party consent, which people in Illinois have really grown accustomed to, but also a bill that would recognize the evolving and changing dynamics of modern technology,” he said. […]

Sen. Kwame Raoul (D-Chicago) says truly private conversations ought to still be protected. Raoul is the architect of new legislation to replace the old law.

“Right now we have a gaping hole in terms of our public policy as to how we protect such conversations,” he said. “There’s nothing in state law that protects the invasion of such privacy.”

The measure passed the Senate on the last day of the legislature’s spring session, but did not get a vote in the House. Raoul says he thinks the measure has a good chance of passing during the fall veto session.

I’m not so sure about that. I plan to write more about this for subscribers in the coming days, but there are some very real disagreements between the two chambers over how to proceed. And until those are resolved, we’re gonna continue to have no-party consent in Illinois.

By the way, there are clear constitutional protections which cover law enforcement’s behavior. They don’t have carte blanche, but private citizens do.

posted by Rich Miller
Thursday, Jun 19, 14 @ 10:13 am

Comments

This seems to contradict the right to privacy that has been ruled a constitutional right, I believe that’s actually a pretty big deal on a lot of Supreme Court rulings.

Comment by Ahoy! Thursday, Jun 19, 14 @ 10:18 am
Why not? Did the guy who recorded Romney saying 49% get prosecuted? I don’t think anyone there consented.

Comment by Pat C Thursday, Jun 19, 14 @ 10:21 am
The right to privacy protects you against the government, not against someone else. (Other statutes regarding invasion of privacy might protect you, but those aren’t constitutional.)

“All party” consent may be the ACLU’s goal, but that goes too far. For example, the special ed kid who recorded the abuse he received from an awful teacher would be in violation of all-party consent. A businesswomen who recorded the shake-down from an alderman would be in violation. Maybe the law should focus on how the recordings are used rather than who gave consent.

Comment by Anonymous Thursday, Jun 19, 14 @ 10:26 am
Also does this mean if someone recorded something in the past and wanted to release it now could they without risk of being charged?

That could be interesting.

Comment by OneMan Thursday, Jun 19, 14 @ 10:30 am
All party consent seems appropriate between private parties. However Public officials whether police or other should be considered to have given consent anytime they deal with the public.

Comment by Mason born Thursday, Jun 19, 14 @ 10:30 am
“This is a great idea…NOT” said Donald Sterling.

Comment by Bluefish Thursday, Jun 19, 14 @ 10:31 am
Privacy seems like so last century. Droves and droves of people offer up their email streams to faceless corporations who then make billions marketing the data mined from scanning the communications. Many people carry cell phones, (smart or otherwise) which broadcast a wide ranging amount of data about themselves on a minute by minute basis. Most retail locations have some sort of video surveillance.

Then we have the governmental data streams of security/traffic cameras.

Seems to me that we have voluntarily given up any sense of privacy some time ago. It ain’t coming back.

Comment by Plutocrat03 Thursday, Jun 19, 14 @ 10:38 am
Interesting and very good that you’re putting some light on this issue - I had no idea. I’m undecided whether it should be two party or one party consent between private parties, but no party consent (me recording a conversation between other people) is riduclous.

Comment by lake county democrat Thursday, Jun 19, 14 @ 10:43 am
Why can’t the GA write a section in particular for law enforcement and another for private citizens. It seems like the considerations are entirely different for both.

Comment by Bring Back Boone's Thursday, Jun 19, 14 @ 10:53 am
don`t say anything in public you would`t say in court keep your words soft and sweet you never know what ones you will eat

Comment by Anonymous Thursday, Jun 19, 14 @ 10:56 am
===don`t say anything in public you would`t say in court ===

You’ve completely missed the point. You can’t now say anything in private - in your own home - that you “wouldn’t say in court.”

Comment by Rich Miller Thursday, Jun 19, 14 @ 10:57 am
Plutocrat

Don’t forget the NSA, By their own admission, recording all e-mails, texts, and most phone conversations.

To me that is one reason why this is such a sticky topic right now.

Comment by Mason born Thursday, Jun 19, 14 @ 11:02 am
Just make sure it’s legal to record elected officials, police, and those in power. IL has significant corruption problems, and the previous unconstitutional law just made things worse.

Comment by Allen Skillicorn Thursday, Jun 19, 14 @ 11:16 am
It’s a brave new world. Anyone with a smart phone can record you anytime, anywhere.

Keep in mind, too, that the whiz kids can easily track your activity on the Internet and figure out who you are in a New York minute. I’m not talking about he NSA, I’m talking private concerns.

Act accordingly, lol.

Comment by wordslinger Thursday, Jun 19, 14 @ 11:19 am
=== Why not? Did the guy who recorded Romney saying 49% get prosecuted? I don’t think anyone there consented. ===

1. That was in a different state… different laws.
2. I’m guessing that is considered a “public” event even if it was invite-only. One has less expectation of privacy giving a speech in front of 40 people than a one-on-one conversation in, say, an office.

Comment by Just Observing Thursday, Jun 19, 14 @ 11:50 am
Does this apply to recording of telephone calls to?

Comment by Just Observing Thursday, Jun 19, 14 @ 11:51 am
People are going to have to start blinking in Morse Code. Even then, it’s only a temporary fix.

Comment by A guy... Thursday, Jun 19, 14 @ 11:56 am
I’m flummoxed by the ACLU’s position on this. It seems like they would be much more concerned by the prospect of public officials violating individual rights with no fear of accountability from a passerby with a cellphone and a YouTube account than by the possibility of private citizens invading each other’s privacy.

There’s a middle ground - “public” and “private” can be defined in the law, and where the lines get blurry, most judges will “know it when they see it.”

All party consent makes no sense - especially in a public, large-crowd setting where the voices of many people may be heard distinctly on a recording of a rally or an encounter with law enforcement.

Comment by Commander Norton Thursday, Jun 19, 14 @ 12:03 pm
Any new law should include one party consent for law enforcement like all other states and the Feds.

Comment by Pacman Thursday, Jun 19, 14 @ 12:12 pm
Not *quite* the total wild west:

“This does not mean, however, that recording of communications is now universally permitted in Illinois:

Recordings may still be subject to the “one-party” consent rule of the Federal wiretap act.
Communications reaching other states may be subject to the wiretapping laws of the remote state.
Secret recordings may still support an Illinois common-law claim for intrusion into the privacy of another. See, e.g., Narducci v. Village of Bellwood, 444 F. Supp. 2d 924, 938 (N.D. Ill. 2006).
Another Illinois statute, not necessarily affected by the decision in the Melongo case, makes it illegal to “videotape, photograph, or film” people without their consent in “a restroom, tanning bed, or tanning salon, locker room, changing room or hotel bedroom.” 720 Ill. Comp. Stat. 5/26-4(a) (scroll down).”

http://www.dmlp.org/legal-guide/illinois-recording-law

Comment by Chris Thursday, Jun 19, 14 @ 12:16 pm
–Does this apply to recording of telephone calls to?–

I think courts have ruled that if you use a wireless device there is no reasonable expectation of privacy, as you’re literally broadcasting the communication.

Comment by wordslinger Thursday, Jun 19, 14 @ 12:16 pm
==People are going to have to start blinking in Morse Code.==

Won’t work. The camera’s out there recording you can be used to decipher it. lol

Comment by Demoralized Thursday, Jun 19, 14 @ 2:09 pm
When a statute is ruled unconstitutional, the law returns to the state it was in before the unconstitutional law was passed. I think that means Illinois returns to a one party consent state.

Comment by archibald Thursday, Jun 19, 14 @ 2:27 pm
===I think that means Illinois returns to a one party consent state.===

Kwame and Nekrtitz both say no party.

Comment by Rich Miller Thursday, Jun 19, 14 @ 2:31 pm
One party consent is the way to go. Almost every other state and the feds allow it. One party consent will still allow for the Donald Sterling’s of the world to be exposed. His mistress is the one party who consented to be recorded in that instance.

Comment by Leave a Light on George Thursday, Jun 19, 14 @ 2:35 pm
Read the language for yourselves: its HB 4283 SenAm1
http://www.ilga.gov/legislation/fulltext.asp?DocName=09800HB4283sam001&GA=98&SessionId=85&DocTypeId=HB&LegID=78445&DocNum=4283&GAID=12&Session=
It does differentiate between public and public officials, it gives law enforcement appropriate tools for serious crimes and it requires greater oversight than if the law were not declared unconstitutional. Read the Supreme Court decisions, listen to the oral arguments. The legislative work on this was extensive and thorough. This bill is a perfect example from both sides (the ACLU and the police who both opposed) that the enemy of the good is THEIR perfect.

Comment by in the know Thursday, Jun 19, 14 @ 3:03 pm
Rep. Nekritz and Sen. Raoul are both great lawyers, but there’s a valid argument that the language reverts by operation of constitutional law. If the Supreme Court struck down the definition of conversation in 14-1, the argument may be different. But the court only invalidated 14-2(a)(1)(A), because the breadth of two party consent interfered with First Amendment rights. In the late 70’s, Public Act 79-1159 added the constitutionally infirm language which turned Illinois from a one party to two party state. Now, I think, we go back.

Comment by archibald Thursday, Jun 19, 14 @ 6:13 pm
==But the court only invalidated 14-2(a)(1)(A), because the breadth of two party consent interfered with First Amendment rights.==

No, that is just wrong. From the Melongo opinion: “We conclude as we did in Clark, 2014 IL 115776, that the recording provision of the eavesdropping statute (720 ILCS 5/14-2(a)(1) (West 2008)), burdens substantially more speech than is necessary to serve a legitimate state interest in protecting conversational privacy. Thus, 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. . . . Defendant raises an additional claim that is not present in Clark. She argues that what she describes as the “publishing provision” of the statute (720 ILCS 5/14-2(a)(3) (West 2008)), is also unconstitutional. The plain language of this provision criminalizes the publication of any recording made on a cellphone or other such device, regardless of consent. This alone would seem to be sufficient to invalidate the provision. . . . We, therefore, find the publishing provision to be overbroad as well.”

Subparagraphs (a)(1) and (a) (3) were thrown out entirely, on their face. The only thing that survives is (a)(2), a provision prohibiting the manufacture or possession of an “eavesdropping device”–a provision, I might add, that has never been prosecuted even once and serves no earthly purpose.

Comment by charles in charge Thursday, Jun 19, 14 @ 8:04 pm
==The only thing that survives is (a)(2)==

You make a fair point, (3) is gone, And it makes sense because, if you’re guilty of publishing under (3) you’re probably guilty of eavesdropping under (1). But that doesn’t address whether the law reverts to its previous state and restores one party consent under the previous (1). In any event, I wouldn’t take the chance on being the test ‘no party’ consent case. Although, I’m sure some folks are skittish about using the statute at the moment.

Comment by archibald Thursday, Jun 19, 14 @ 9:40 pm
Not only can I now secretly record a private conversation with you without your knowledge, I can legally record a conversation between you and someone else without either of you knowing what I’m doing.

That conduct would violate federal law.

Comment by Lobo y olla Friday, Jun 20, 14 @ 6:59 am
I think courts have ruled that if you use a wireless device there is no reasonable expectation of privacy, as you’re literally broadcasting the communication.

That is entirely incorrect, Word. Cell phones are completely protected. A warrant is needed to intercept the content of electronic conversations . Remember Farnham’s chats?

Comment by Lobo y olla Friday, Jun 20, 14 @ 7:02 am