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Setting the Record Straight on Eavesdropping

Last week, the General Assembly passed SB1342, legislation that restored Illinois’ long standing policy that no one in a private conversation can be recorded without their consent. This was necessary after the Illinois Supreme Court  last March declared the state’s law covering unauthorized recordings – known commonly as eavesdropping –  unconstitutional.

This legislation was the result of many years of work and debate between a wide variety of stakeholders.

Since last week, there have been numerous inaccurate media reports that the legislation makes it a felony to record police officers while performing their duties in public. This is not true.

I fully support the right of citizens to record public officials and agree with state and federal courts that have upheld the right of citizens to do so.

My motivation in sponsoring this legislation was to help Illinoisans be confident that conversations they have and expect to be private remain so. I believe this bill accomplishes that. Below is a lengthy summary of SB1342. It’s a complicated and sensitive issue that can’t be summarized in just one or two paragraphs. I hope you’ll read it, share it, and contact my office at 847-229-5499 or enekritz@repnekritz.org with any questions.

As always, thank you for the opportunity to serve you.

 

 

Illinois Eavesdropping Law

 

Background: In March 2014, the Illinois Supreme Court struck down Illinois’ eavesdropping law. The law prohibited people from using a device to hear or record oral conversations without the consent of all parties. It did not provide exceptions for recording conversations that weren’t intended to be private (crowds yelling at a basketball game), recording conversations that were made in the open (a person standing with a video camera at a protest), or recordings of conversations in which the participants have no expectation of privacy (recording a child support hearing or a conversation between a police officer and group on a corner). The court held the law was an overbroad restriction on speech because innocent conduct was made criminal.

SB1342 redefined what constitutes “eavesdropping.” Under the bill, a person eavesdrops if they use a device to secretly record private conversations without consent of all participants. A conversation is considered private if one or more of the parties had a “reasonable expectation” that the conversation would be private. While the prior law prohibited all recordings without consent, SB1342 is very narrow and only prohibits recording conversations if both (i) the recording device is concealed and (ii) the person records a private conversation.

Examples of conduct that would be considered criminal under SB1342:

  • Three people sitting in a car talking about things they do not like about their spouses. Two of the three believe the conversation is private. The third records the conversation using a tape recorder hidden in her purse.
  • Someone secretly places a recording device under a coffee table in a person’s home and records a husband and wife discussing disciplining their children.

Examples of conduct that would NOT be considered criminal under SB1342:

  • A person in a restaurant uses their iPhone to record a group of people singing happy birthday.
  • A father holding a video recorder at their child’s baseball game records a conversation between two people sitting behind him.
  • A person with an iPhone in their pocket records a conversation between a police officer and a person being arrested at Walgreens.

Recording Law Enforcement: There have been reports that the bill prohibits recording law enforcement while engaged in their duties. This is false and was not the intent of the bill. An on-duty police officer does not have an expectation of privacy, particularly when doing his job in public (i.e. pulling over cars, monitoring a protest, arresting someone in a public location). This was specifically discussed by the sponsors on the floor during debate and it was made clear that this bill permits people to record law enforcement while engaged in their duties, provided the conversation isn’t private.

Summary of  SB1342

1) A person is considered an eavesdropper if he or she (i) uses an eavesdropping device to secretly record a private conversation without the consent of the all parties, (ii) uses an eavesdropping device to secretly record electronic communications without the consent of all parties, or (iii) discloses the content of a private conversation or private electronic communication without the consent of all parties.

2) Currently law enforcement may use an eavesdropping device to record conversations related to certain drug offenses with approval of a State’s Attorney. The bill expands this exemption to allow law enforcement to record conversations related to certain forcible felonies with written or verbal approval of the State’s Attorney. In all instances, the State’s Attorney must file notification of the approval with the circuit’s chief judge. Additionally, each State’s Attorney must submit an annual report to the General Assembly detailing use of this exemption.

3) Reduces the penalties from a Class 1 felony to a Class 3 felony for eavesdropping on law enforcement, State’s Attorneys, or judges performing their official duties. Note that the situations in which a person eavesdrops on a law enforcement officer performing their official duties are limited to private conversations that are secretly recorded. In other words, the type of conduct that would punishable includes planting a recording device in a State’s Attorney’s office or judge’s chambers to record private conversations.

 

 

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