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* As you already know, the Illinois Supreme Court declared the state’s eavesdropping law to be unconstitutional. There have been several attempts to draft a new law, and the latest has cleared both chambers. Some bullet points from the bill’s sponsor…
_An eavesdropper is someone who uses an eavesdropping device to secretly record a private conversation without the consent of all parties involved in the conversation. A conversation is considered private if at least one of those involved had a reasonable expectation the conversation is private.
_An eavesdropper is anyone who uses a device to secretly record electronic communications without the consent of everyone involved.
_An eavesdropper is someone who discloses the content of a private conversation or private electronic communication without permission.
_The penalty for eavesdropping on a law enforcement officer, state’s attorney or judge is reduced from a Class 1 felony to a Class 3 felony.
_Law enforcement can use an eavesdropping device to record conversations around certain forcible felonies with the approval – written or verbal – of the local state’s attorney. State’s attorneys must submit reports annually explaining how often this exemption was used.
* The “discloses the content of a private conversation or private electronic communication without permission” stuff troubles me. A lot. Here is the language…
Uses or discloses any information which he or she knows or reasonably should know was obtained from a private conversation or private electronic communication in violation of this Article, unless he or she does so with the consent of all of the parties.
* Private conversation defined…
For the purposes of this Article, “private conversation” means any oral communication between 2 or more persons, whether in person or transmitted between the parties by wire or other means, when regardless of whether one or more of the parties intended the their communication to be of a private nature under circumstances reasonably justifying that expectation.
* The reasonable expectation definition should mean that somebody could record a police officer in a public space (which is what the state Supreme Court case was about) without first obtaining permission…
A reasonable expectation shall include any expectation recognized by law, including, but not limited to, an expectation derived from a privilege, immunity, or right established by common law, Supreme Court rule, or the Illinois or United States Constitution.
But…
The eavesdropping of an oral conversation or an electronic communication of any law enforcement officer, State’s Attorney, Assistant State’s Attorney, the Attorney General, Assistant Attorney General, or a judge, while in the performance of his or her official duties, if not authorized by this Article or proper court order, is a Class 3 felony, and for a second or subsequent offenses, is a Class 2 felony.
So, unless we get another top court case, I figure people will still be arrested if they do something like record police officers who are in their homes.
* Now, let’s move on to the definition of private electronic conversations…
…any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or part by a wire, radio, pager, computer, electromagnetic, photo electronic or photo optical system, when the sending or receiving party intends the electronic communication to be private under circumstances reasonably justifying that expectation.
So, forwarding a private e-mail would be a crime? More importantly, if a journalist receives a forwarded private e-mail (which happens more than you might think), could the journalist be charged with a crime if it results in “disclosure”? Sure looks that way.
Not cool at all. I’m told this was inserted at the insistence of the Senate Democrats, but it was done in such a way that if (when) a court strikes it down the action wouldn’t kill off the rest of the law.
posted by Rich Miller
Thursday, Dec 4, 14 @ 12:36 pm
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What is the beef about recording law enforcement in action? Very recent experience, say, from yesterday, would suggest they have nothing to fear from it.
Comment by Wordslinger Thursday, Dec 4, 14 @ 12:43 pm
Rich, excellent work! Please keep us posted on this very important and time lay issue, thank you!
Comment by William j Kelly Thursday, Dec 4, 14 @ 12:45 pm
Amen, Wordslinger. Why on earth shouldn’t I be able to record any public official–a cop, a clerk, a judge, a street sweeper–performing his or her public duties?
Can’t this general assembly do anything right? Anything at all? I’m beginning to wonder.
Comment by Anonymous Thursday, Dec 4, 14 @ 12:54 pm
Veto.
Comment by Yellow Dog Democrat Thursday, Dec 4, 14 @ 12:55 pm
Let me emphasize:
In the wake of Michael Brown and Eric Garner,
VETO.
Comment by Yellow Dog Democrat Thursday, Dec 4, 14 @ 12:58 pm
Poor law…..
Comment by OutSider Thursday, Dec 4, 14 @ 12:58 pm
If this bill was any more plainly drafted by the cop lobby, it would have come stapled to a box of donuts. Talk about a huge step backwards.
Comment by Newsclown Thursday, Dec 4, 14 @ 1:07 pm
VETO VETO VETO
Comment by crazybleedingheart Thursday, Dec 4, 14 @ 1:10 pm
=== - OutSider - Thursday, Dec 4, 14 @ 12:58 pm:
Poor law….. ===
Not yet. Hopefully, Quinn will do something competent and veto this puppy.
Comment by Norseman Thursday, Dec 4, 14 @ 1:11 pm
==So, forwarding a private e-mail would be a crime? More importantly, if a journalist receives a forwarded private e-mail (which happens more than you might think), could the journalist be charged with a crime if it results in “disclosure”? Sure looks that way.
Not cool at all.==
IL Press Assoc slipped no position. Interesting.
Comment by crazybleedingheart Thursday, Dec 4, 14 @ 1:13 pm
If you are a law enforcement official and you’ve got an issue with members of the public recording you then you probably have something to hide and I would question your fitness to be a public official or a police officer.
Comment by Demoralized Thursday, Dec 4, 14 @ 1:23 pm
Are we going to spend loads of money on police body cameras and then make it illegal for citizens to video police? That makes no sense.
Comment by Nicholas Thursday, Dec 4, 14 @ 1:26 pm
What part of the unconstitutional does the entire membership of the GA not understand?
These people (supposedly the smart ones) completely disregard the courts re; pensions and now eavesdropping.
I don’t think anyone can honestly say that politics has anything to do with this attitude anymore. There simply are too many individuals making up the GA, that someone, anyone, must understand how to NOT be influenced and finally admit their colleagues utter failure at governing and writing our laws.
After Ferguson, and now New York, the seem oblivious to the public’s sentiment, let alone their individual ignorance of the real world all around them.
Comment by northernwatersports Thursday, Dec 4, 14 @ 1:27 pm
==So, unless we get another top court case, I figure people will still be arrested if they do something like record police officers who are in their homes. ==
Rich, I disagree with your analysis. As drafted, a person is only an eavesdropper if they use a recording device to secretly record a conversation, all of the people participating in the conversation had a reasonable expectation of privacy, and the parties did not consent to be being recorded.
A person isn’t an eavesdropper if they record comments of law enforcement officers make to people at a protest or in their home. The person would most likely be recording openly and the officers have no expectation of privacy given they are standing in public or doing public work.
Comment by Booyah Thursday, Dec 4, 14 @ 1:28 pm
Please calm down. Read the definition of surreptitious. anyone can record police on the street with a camera phone with no violation.
Comment by Lobo Y Olla Thursday, Dec 4, 14 @ 1:30 pm
It appears that a third party recording of a police officer with a citizen would violate this. Not good.
Comment by D.P.Gumby Thursday, Dec 4, 14 @ 1:43 pm
Here is my problem. If your talking to me, the conversation as to me isn’t private. I should be able to record it whether you agree or know. Forbidding the recording just means I am denied an accurate record of what you said to me. If your saying it to me, it ain’t private as they me. So if a collector wants to make outrageous claims or comments, I should be free to record whatever they say whether they know it is being by recorded or not
Comment by Ghost Thursday, Dec 4, 14 @ 1:43 pm
So I can record police on the street, but not in my own house???
Comment by Anonymoiis Thursday, Dec 4, 14 @ 1:53 pm
This blatantly unconstitutional bill was Eric Madiar’s parting gift to the General Assembly. Something to remember whenever someone says how brilliant he is.
Comment by charles in charge Thursday, Dec 4, 14 @ 1:53 pm
ghost is tapping into the comments of justice garman at hearing. the aclu types are focused on the privacy rights of the speaker, not the first amendment rights of the receiver. and lobo is also right, the requirement that the recording be done secretly or through deception is critical. i agree the private electronic communications language is potentially troubling, but if someone hacked anothers email and disclosed it, that is probably fair game to criminalize. reading the language, how could a reporter receive an email from a participant in an email exchange be prosecuted if they didn’t act “in a surrepticious manner”. not the patently bad bill that some of you think, albeit flawed
Comment by goose/ganders Thursday, Dec 4, 14 @ 2:34 pm
You all are missing the point. The legislators do not want their “private” conversations recorded under one party consent. Cops on the street are the least of their concerns.
As soon as LE all get body camera sound and video of nearly every encounter will be memorialized on tape
Comment by Leave a Light on George Thursday, Dec 4, 14 @ 2:41 pm
The first link, “and the latest”, goes to an earlier version of the bill.
Comment by Bigtwich Thursday, Dec 4, 14 @ 2:52 pm
@goose/ganders:
The American Civil Liberties Union is the most Conservative group in the United States of America. They ARE defending the Constitution of the United States of America.
The TEA Party are a bunch of Socialist, Muslim, Kenyan, Liberals compared to the ACLU. They only care about Civil Liberties if you are a White, Heterosexual, Xtian.
Comment by Del Clinkton Thursday, Dec 4, 14 @ 3:34 pm
= the aclu types are focused on the privacy rights of the speaker, not the first amendment rights of the receiver. ==
I don’t know what “aclu types” are, but the actual ACLU of IL opposed the bill.
Comment by crazybleedingheart Thursday, Dec 4, 14 @ 3:42 pm
Quinn needs to veto this. If not we’ll just have a few years of questionable activities before the Illinois Supreme Court rejects it as unconstitutional. There’s no way you can get away with prosecuting a reporter for reporting what he hears or reads, regardless of where it came from short of a national security issue, and even then we still have the New York Times operating.
Comment by Downstate Illinois Thursday, Dec 4, 14 @ 4:53 pm
So does this include secret keystroke monitors placed on computers by an employer?
Comment by No-Name-Nick Thursday, Dec 4, 14 @ 4:57 pm
So by this law, gossip is now illegal. How in the heck did this get out of committee?
Comment by Chicago Cynic Thursday, Dec 4, 14 @ 5:40 pm
Events of recent weeks might want to prompt Americans to give a re-think to the anachronistic and abused grand jury system.
Just as prosecutors can infamously steer a grand jury to indict a ham sandwich, they can also dump cases they find too hot to handle and steer them away from indictments. And all in secret, without any public scrutiny or disclosure of the proceedings, by law.
It’s not the 1800s where any any sheriff, citizen or nut job could seek indictments. Elected prosecutors should do their jobs and make decisions either not to indict or take it in front of a judge, present all the evidence and get a ruling on probable cause in open court.
Comment by Wordslinger Thursday, Dec 4, 14 @ 6:09 pm
@No-Name-Nick - Most companies’ IT policy basically says that if you are using their resources, it isn’t private / they can monitor/log everything.
I don’t understand what distribution has to do with eavesdropping. To me, those are two different actions.
Comment by anon Thursday, Dec 4, 14 @ 7:02 pm
Maybe I’m misreading the bill, but it seems to me that this sentence would criminalize simple gossip:
“An eavesdropper is someone who discloses the content of a private conversation or private electronic communication without permission.”
That can’t be the intent, right?
Comment by Kadomony Friday, Dec 5, 14 @ 8:55 am
Wordslinger,
You are, generally, right about the grand jury system, but let’s not forget that authorities in St. Louis released the entire transcript of grand jury proceedings. That has led to significant public scrutiny. I agree, though, that, prosecutors should not be abrogating their responsibilities. If a prosecutor doesn’t believe that there is probable cause or sufficient evidence to convict, then a case should not go before a grand jury. Way too many prosecutors are now using grand juries as cover.
Comment by Anonymous Friday, Dec 5, 14 @ 9:02 am