In March the
Illinois Supreme Court unanimously
overturned that state’s draconian Eavesdropping Act, finding
that it “criminalizes a wide range of innocent conduct” and
“burdens substantially more speech than is necessary to serve a
legitimate state interest in protecting conversational privacy.”
Last week the Illinois General Assembly overwhelmingly
approved a new eavesdropping law that purports to meet the
court’s constitutional concerns. Whether it actually does is a
matter of dispute.
The bill,
which awaits Gov. Pat Quinn’s signature, allows people to record
conversations when all parties have consented or when none has a
“reasonable expectation” of privacy. That’s an improvement over the
old law, which made it a felony to record any conversation without
all-party consent, including public interactions with police
officers. But because it may be difficult to determine in advance
which conversations will be deemed private, the new version of the
eavesdropping ban could still have a chilling effect on recordings
of public officials.
The ACLU of Illinois, which challenged the old law, objects to a
provision in the new one that broadens the circumstances in
which police may record private conversations without a warrant.
But the ACLU likes
the other changes made by the bill:
It is good that the new eavesdropping statute enacted during the
veto session generally protects our reasonable expectations of
privacy in our conversations, phone calls, and electronic
communications from unwanted recording or interception, and that it
does so without intruding on our First Amendment right to expose
government misconduct by recording the non-private conversations of
on-duty government officials. The new statute does this by
prohibiting the recording and intercepting of only private
conversations, unless there is all-party consent or a
warrant.
By contrast, Jacob Huebert, senior attorney at the Liberty
Justice Center,
argues that “the new version is nearly as bad as the old one,”
since “a citizen could rarely be sure whether recording any given
conversation without permission is legal.” The bill says consent is
required whenever “one or more of the parties intended the
communication to be of a private nature under circumstances
reasonably justifying that expectation.” It adds that “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.”
Because it is hard to predict how the courts will parse those
issues, Huebert says, people recording conversations will often be
unsure whether they are committing a felony. The Illinois Supreme
Court, for example, indicated that police performing their duties
“in public places” do not have a reasonable expectation of privacy.
But what about a cop who enters someone’s back yard or serves a
warrant in a private office or residence? Is recording what he says
in those settings legal or not? What about telephone conversations
with public officials about public matters? Does a citizen risk
prosecution and imprisonment by recording those interactions
without consent?
In addition to this sort of uncertainty, Huebert notes, the
eavesdropping bill retains another odious aspect of the old law: It
punishes unauthorized recordings of public officials—specifically,
police officers, prosecutors, and judges—more severely than
unauthorized recordings of ordinary citizens. The former would be a
Class 3 felony, punishable by two to four years in prison, while
the latter would be a Class 4 felony, punishable by one to three
years in prison. If anything, that is the opposite of the
distinction the law should draw, since public officials, given the
power they wield, should be subject to greater scrutiny than
private citizens. “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,” Huebert writes. “That
is not a legitimate purpose.”
The ACLU’s preference for all-party consent, although motivated
by a desire to protect people’s privacy, seems misguided to me. All
but 12 states
allow the recording of conversations with the consent of one
party. That rule makes more sense to me, and not just because it
allows me to record interviews without asking for permission first
(which is usually not a problem but can dissuade some sources from
speaking on the record, just as picking up a pen and paper can).
Think of it this way: People are generally free to report the
content of even the most private conversations in which they
themselves participate. Adding the possibility of recording (or
note taking) can only serve to make such reports more accurate. And
if people understand the ground rules, they can exercise
appropriate caution.
[Thanks to Mark Sletten for the tip.]
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