SPRINGFIELD — Does a proposed replacement for Illinois’ eavesdropping law give police the green light to arrest people for recording officers?
It does not.
Experts, however, are divided over the adequacy of citizen protections in the new bill.
And, at this point, questions, more than answers, seem to define the problems: What is a public discussion and what is private one? What, exactly, is a “reasonable expectation” of privacy? Should ordinary citizens be expected to make those determinations?
One opponent of the new law has been the Liberty Justice Center, whose lead attorney on the matter says the Legislature did the minimum to address the Illinois Supreme Court’s decision that voided the previous law. Although the center’s Jacob Huebert says he’s been misquoted as saying the bill is a go-ahead for police to arrest anyone who records them, it is an intentional damper on citizens recording public officials, police included.
Huebert said he thinks the bill was meant to intimidate citizens and discourage the practice.
He throws out a hypothetical: You’re in your neighbor’s back yard and police enter to serve a warrant or make an arrest. Are you in a public place or a private place? What happens if you record the police with your cellphone?
He argues it is unreasonable and unfair to place the burden of determining what is or is not “a reasonable expectation of privacy” on ordinary citizens.
He contends people should be able to record public officials in the course of their duties no matter the time or location.
“The new version is nearly as bad as the old one,” Huebert says of Senate Bill 1342.
State Sen. Kwame Raoul, D-Chicago, and State Rep. Elaine Nekritz, D-Northbrook, sponsored the legislation. It passed the House on a 106-7 vote and the Senate by a vote of 46-4.
A sponsor responds
Nekritz said it was never the intent of the legislation to forbid audio recording of police officers doing their duties. Video recording in public is already legal.
And, Nekritz said despite some headlines to the contrary, the proposed legislation does not criminalize recording police.
“It does not,” she said. “And let me add this: When the previous law went into effect, I sponsored legislation to decriminalize that.”
While amendments may prove necessary, it is ultimately up to the citizens to determine what is and is not reasonable, Nekritz said.
People serving as jurors, for instance, have to determine what reasonable means when it comes to “reasonable doubt.”
A legislative attempt to list or enumerate every instance of what is “reasonable” — much like exactly defining “public” — would be impossible and likely only raise more questions and bring more litigation, she said.
Other groups considered pro-citizen or pro-rights are not thrilled with the bill, but they are less markedly upset.
The American Civil Liberties Union, for instance, was insistent on retaining all-party consent (everyone involved must agree) for the recording of private conversations.
It can live with the new bill’s language on that topic, said Ed Yohnka, the group’s communications director.
Although the ACLU opposed the bill, it “generally protects our reasonable expectations of privacy in our conversations, phone calls, and electronic communications from unwanted recording or interception,” the group wrote on its website.
The ACLU is unhappy, however, with a section of the bill that expands the categories of crimes for which police can obtain permission from a state’s attorney — not a judge — to record certain conversations for up to 24 hours.
“Here’s the real harm in this: We depend upon the fact that our conversations our really intimate,” Yohnka said. “We believe that we have privacy when we are talking to someone else. We believe that government isn’t going to intrude and listen in.”
Should the government wish to listen in, it should have to turn to an independent third party. Handing over to a prosecutor the ability to initiate government recording is giving up a check on government power, the ACLU maintains.
Nearly everything within the bill as well as some topics it does cover seem to draw fire.
One-party consent (anyone can record without permission) as opposed to all-party consent is no easy question in Illinois.
Although roughly three dozen states allow one-party consent, Illinois has not and apparently will not allow it.
Some libertarians argue, in essence, let it roll when it comes to recording government officials.
Some even say anyone should be able to record anyone.
Others say, no, one-party consent only opens the door to government recording.
Nekritz, Yohnka and others say this legislation and case law make it clear to public officials — police included — they generally do not have a reasonable expectation or privacy.
Another point of dispute: Body cameras on police.
Some critics of the new legislation point to this bill’s silence on the matter as letting police roll unchecked.
The sponsors say that’s a big issue that needs to be, and will be, addressed in separate legislation.
Another sore point: Penalties for wrongly taping a public official remain greater than for wrongly taping a private citizen.
Backers of the new version, or those who say they merely can tolerate it, say that’s true. But, they add, the gap in sentences actually has been lessened in this bill.
Steve Baker, legislative liaison for the Cook County Public Defender’s Office, said much of the debate over the current proposal might be little more than sound and fury.
“We’re not going to see the end of the world if the governor signs this bill,” Baker said.
With 102 state’s attorneys in Illinois, it’s always possible one might “go rogue” and try without grounds to prosecute someone for recording police, Baker said. But that prosecutor would be out of touch with the legislative intent of the bill and with legal precedent.
But might police still make a bad arrest when it comes to people recording them?
Of course, Baker said.
But, he added, “You might not be able to beat the ride (to jail), but you should be able to beat the rap (in court).”
Mark Fitton is a reporter for the Illinois News Network.