Illinois Law Makes it Illegal to Record Police – Fiction!
Summary of eRumor:
A new law in Illinois makes it illegal for people to record all interactions with police officers.
It’s not true that it would be illegal to record all interactions with police officers under a bill approved by the Illinois legislature.
The measure would, however, make it illegal to record private conversations with cops and government officials. Critics argue that it would be hard for the public to understand the difference between “public” and “private” interactions under the law.
At the center of the eRumor is an amendment to Senate Bill 1342. The bill, which was approved by the state legislature on December 2, 2014, overhauls the Illinois Eavesdropping Act, which was struck down by the Illinois Supreme Court in March of 2014. The state’s high court found that the act “burdens substantially more speech than is necessary to serve a legitimate state interest in protecting conversational privacy.”
The decision continued:
“The statute as now written deems all conversations to be private and, thus, not subject to recording absent consent, even if the participants have no expectation of privacy. The State argues that the choice between a law that might be over-inclusive and one that might be under-inclusive is a policy matter for the legislature, not the courts.
When that policy criminalizes a wide range of innocent conduct, however, it cannot be sustained. The statute criminalizes the recording of conversations that cannot be deemed private: a loud argument on the street, a political debate on a college quad, yelling fans at an athletic event, or any conversation loud enough that the speakers should expect to be heard by others. None of these examples implicate privacy interests, yet the statute makes it a felony to audio record each one. Judged in terms of the legislative purpose of protecting conversational privacy, the statute’s scope is simply too broad.”
The amendment to Senate Bill 1342 addresses the recording of private — not public — interactions between police officers and citizens. The amendment also applies to police and police informants secretly recording suspects during an investigation.
According to the amendment:
“For the purposes of this Article, ‘private the term conversation’ means any oral communication between two 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. 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.”
The amendment doesn’t re-write the definition of “expectation of privacy.” It’s determined on a case-by-case basis under federal law using loose criteria, Cornell University Law School reports:
“The Fourth Amendment protects people from warrantless searches of places or seizures of persons or objects, in which they have an subjective expectation of privacy that is deemed reasonable in public norms. The reasonableness standard is construed upon the totality of circumstances on a case-by-case basis. The person’s precautions taken to exclude others’ access are strong indicators to the expectation of privacy and might be taken into consideration by the court.
The legitimate expectation of privacy must have a independent source outside Fourth Amendment. For example, private homes are at the core of Fourth Amendment protection subject to a few exceptions, as they are closely associated with the ownership interest in property law.”
However, critics of the Illinois statute argue that its definition of “reasonable expectation of privacy” is overly vague. As the law is written, it could be legal for someone to record a police officer in their own home, but not in a home that they are visiting. It could also be legal to record a police officer on a sidewalk, but not inside a police car parked next to the sidewalk.
The independent Illinois Policy Institute argued that the law’s vagueness would leave the public in the dark about when it’s legal and illegal to record police officers:
“Under the new bill, a citizen could rarely be sure whether recording any given conversation without permission is legal. The bill would make it a felony to surreptitiously record any ‘private conversation,’ which it defines as any ‘oral communication between 2 or more persons,’ where at least one person involved had a ‘reasonable expectation’ of privacy.
When does the person you’re talking to have a reasonable expectation of privacy? The bill doesn’t say. And that’s not something an ordinary person can be expected to figure out.
A law must be clear enough for citizens to know in advance whether a particular action is a crime. This bill doesn’t meet that standard, which should be reason enough for a court to strike it down if it becomes law.”
However, the American Civil Liberties Union (ACLU) of Illinois applauded the legislature’s passage of 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. So the new statute generally provides that police, informants or other members of the public cannot record our private conversations without our permission. Also, we cannot be arrested or prosecuted under the new statute for recording on-duty government officials who are talking to the public as part of their jobs, because those conversations are not private.
In conclusion, the law approved by the Illinois legislature wouldn’t make it illegal to record police officers or government officials in public venues, but critics argue that the vagueness of the law makes it impossible to determine what’s public and what’s private.