THE BLOG
12/17/2014 03:24 pm ET Updated Feb 16, 2015

5 Things You Need to Know About Illinois New Eavesdropping Law

In the past few days, there has been a flurry of information about SB 1342, a pending rewrite of Illinois eavesdropping statutes. Some say it will punish ordinary citizens who record the police; some say it's too vague and others that it gives police more authority to eavesdrop on citizens.

Here's what you need to know about SB 1342 as it awaits the governor's signature.

1. The bill does not ban filming the police.

When I wrote my original article on the bill, I made an amateur mistake. I substituted "film" for "record," as in everyday speech they are often interchangeable. However, as the 7th Circuit court noted in Am. Civil Liberties Union of IL v. Alvarez, Illinois' original eavesdropping statute had nothing to do with recording video without sound. Even the state's attorney, Anita Alvarez, agreed. Although many people film with sound, since it is entirely possible to film with the microphone off, to say this bans filming police is inaccurate.

2. The bill now explicitly includes women.

Until SB 1342, only men were explicitly named in several portions of Illinois' eavesdropping statutes. Though it's extremely doubtful that a court would refuse to prosecute simply based on gender, the proposed statutes make it explicitly clear that women can be punished as well by adding "or her" and "or she" to sections 14-1 and 14-2.

3. The bill lowers penalties for violating the eavesdropping law on public officials.

Though it is still disconcerting that this law punishes recording a law enforcement officer or certain members of the Illinois judicial branch with more jail time than recording any other person, SB 1342 drops the penalty from a class one felony to a class three felony.

Here's the original language of the statute (emphasis added):

(b) The eavesdropping of an oral conversation or an electronic communication between any law enforcement officer, State's Attorney, Assistant State's Attorney, the Attorney General, Assistant Attorney General, or a judge, while in the performance of his or her official duties, if not authorized by this Article or proper court order, is a Class 1 felony.

Here's the new language:

(b) The eavesdropping of an oral conversation or an electronic communication of any law enforcement officer, State's Attorney, Assistant State's Attorney, the Attorney General, Assistant Attorney General, or a judge, while in the performance of his or her official duties, if not authorized by this Article or proper court order, is a Class 3 felony, and for a second or subsequent offenses, is a Class 2 felony.

Though the bill still sets a clear distinction between recording certain officials and recording members of the public, by reducing the felony class for recording the former, it has significantly lowered the penalty gap.

4. The bill expands circumstances where police can eavesdrop without judicial approval.

In their press release, the Illinois ACLU noted:

Unfortunately, compared to the last version of the Illinois eavesdropping statute, the new statute significantly expands the circumstances when police and informants may record and intercept private conversations and phone calls without all-party consent or a warrant.

Previously, the eavesdropping statutes had a special exception from the court-order requirement for drug offenses. Offenses such as first-degree murder, sexual assault and others, required a warrant "within 48 hours of the commencement of such use." Further, "In the absence of such an order, or upon its denial, any continuing use shall immediately terminate."

Now, that section, (g-5), has been entirely erased, and several offenses moved from the warrant requirement to an exemption. Those eavesdrops now exempt from the Fourth Amendment required warrant include:

first degree murder, solicitation of murder for hire, predatory criminal sexual assault of a child, criminal sexual assault, aggravated criminal sexual assault, aggravated arson, kidnapping, aggravated kidnapping, child abduction, trafficking in persons, involuntary servitude, involuntary sexual servitude of a minor, or gunrunning.

5. The bill's protections hinge on one word.

Reasonable.

SB 1342's protections rely on a recognized reasonable expectation of privacy. According to the new law, that means any such 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."

Assuming the best intentions by the courts when interpreting this language, the amount of circumstances this raises questions about are endless. For example, though the 7th Circuit ruled that police officers on duty in a public place don't have this expectation, what about a police officer who enters your home? Does the average citizen in Illinois have the right to record an incident involving police at a birthday party in their backyard? What about not technically in their home, but not necessarily in public, on their porch?

The Illinois ACLU seems to have great faith in the courts to set a reasonable line of privacy on the reasonableness of the First Amendment protections present in Illinois new eavesdropping statutes. From IB Times:

Concerns over police recording are largely misplaced, according to Ed Yohnka, director of communications and public policy for the American Civil Liberties Union (ACLU) of Illinois. While in-home recording may be argued as 'private,' it is extremely unlikely that any person would ever be prosecuted for recording police action in their own home, he said.

Unfortunately, it is not difficult to doubt those assurances by taking a glance at recent court cases on the Fourth Amendment. Like the First Amendment test utilized by the 7th circuit, the Fourth Amendment has a "reasonableness" test for its searches and seizures. Yet that test has not favored the average person.

Not only have curious court opinions declared sobriety checkpoints legal, and drug checkpoints illegal, simply on the way they were argued, the courts have also defined TSA body scanners, NSA surveillance, warrantless home searches by police when only one occupant consents and searches where police were ignorant of the law reasonable under the same Fourth Amendment.

Even if one were to entrust this standard with the courts, however, it is unfair to place the burden of determining what is and is not reasonable on the citizen. The average person reviewing these eavesdropping statutes will have little idea of the line between reasonable and unreasonable expectations of privacy, and may choose to avoid recording police even when it is their right to do so.

SB 1342, for this reason alone, could have a chilling effect on those looking to record police in Illinois.