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Illinois Eavesdropping Law Redux 2014

Recently, the Illinois Legislature passed a new eavesdropping law that again brings into focus the issue of recording public officials, including police officers, engaged in their official duties in the public way. Many articles have been circulating pointing out that the law has again made it “illegal” to record police officers in public, specifically citing the section of the law that makes it a Class 3 Felony to commit the act of eavesdropping on any public official, in contrast to the Class 4 Felony classification for committing the offense of eavesdropping against a private citizen. 720 ILCS 5/14-4 (a-b).

The double standard here with respect to felony disposition of an offense against a public official and as against a private citizen is admittedly myopic. However, the proposed Act unambiguously makes it illegal to record only “private conversations” in a “surreptitious manner.” 720 ILCS 5/14-2(a). Furthermore, the Act defines “private conversation” at 720 ILCS 5/14-1(d) as “any oral communication between 2 or more persons . . . when one or more of the parties intended the communication to be of a private nature under circumstances reasonably justifying that expectation.” Additionally, the Act states 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 lawSupreme Court rule, or the Illinois or United States Constitution.” 720 ILCS 5/14-1(d).

The second quoted part of this section is significant, because it allows the common law to define what “reasonable expectation” should mean. Recent case law on point makes it clear, there is no reasonable expectation of privacy of any oral communication of a peace officer, or other public official, carrying out his or her official duties in the public way. See ACLU v. Alvarez, 679 F. 3d 583 (7th Cir. 2012); see also People v. Clark, 2014 IL 115776 (2014); People v. Melongo, 2014 IL 114852 (2014). Lastly, contrary to the general consensus, it is not, nor has it ever been illegal to video record or photograph a police officer carrying out his or her official duties in the public way. The Eavesdropping Act, the previous incarnation as well as this proposed piece of legislation, only applies to oral communications.

The issue with this bill is that in the exemptions section, it expands the circumstances in which police officers and or informants may surreptitiously record “private” conversations without judicial approval. 720 ILCS 5/14-3(g). There seems to be no justifiable reason why the Illinois legislature felt it necessary to circumvent judicial oversight when it comes to investigating illegal conduct, other than to grant state law enforcement agencies with quasi-NSA spying authority. The Fourth Amendment, not the First, is what’s truly being infringed upon with this particular piece of legislation and for that reason, should fail constitutional scrutiny.

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