An Illinois eavesdropping bill has passed both the Illinois House and Senate, which makes it a class 3 felony to record other people’s private conversations with police officers. Though the law was meant to offer citizens more leeway when it comes to free speech, detractors say the law is too vague to be immune to misuse by law enforcement looking to cover up bad behavior.
The bill passed with overwhelming, bipartisan majority votes in both houses; 106-7 in the House on and 46-4-1 in the Senate. It says that unlawfully recording a private conversation with police or an attorney general, assistant attorney general, state's attorney, assistant state's attorney or judge is now a class 3 felony that is punishable by two to four years in prison. Illegal call or video recording of a private citizen is now a class 4 felony, which earns the offender one to three years in prison.
The legislation was intended to replace a previous eavesdropping law that had been struck down by the state Supreme Court, which did make it a crime for citizens to record conversations with police or anyone else without the other person's permission.
According to the court’s ruling, that law "criminalize[d] a wide range of innocent conduct" and violated free-speech rights. In particular, the court noted the state could not criminalize recording activities where there is no reasonable expectation of privacy.
Even though it was intended to make things better, in the post-Ferguson era, the bill drew swift and sharp criticism from some corners.
“There's only one apparent reason for imposing a higher penalty on people who record police in particular: to make people especially afraid to record police,” said the Free Thought Project. “That is not a legitimate purpose.”
However, it’s important to note that the law doesn’t prohibit all recording of police interactions with citizens, but is rather tied to privacy expectations. It makes it a felony to surreptitiously record any “private conversation,” which it defines as any “oral communication between two or more persons,” where at least one person involved had a “reasonable expectation” of privacy. Citizens' public encounters with police would not be covered under the law, and are therefore legal.
The issue here is clarity as to what constitutes “public” and “private” interactions.
“Citizens can’t be expected to know for sure precisely which situations give rise to an expectation of privacy and which don’t,” said IllinoisPolicy.org, in a posting. “The Illinois Supreme Court said that police don’t have an expectation of privacy in ‘public’ encounters with citizens, but it did not explain what counts as a ‘public’ encounter. So if this bill becomes law, people who want to be sure to avoid jail time will refrain from recording police at all, and the law will therefore still effectively prevent people from recording police.”
Edited by Maurice Nagle