A proposed modification of the Illinois eavesdropping law would ease restrictions on every citizen with a smartphone and allow them to record the actions of police, but the possible changes are being met with criticism.
The existing law, struck down by the Illinois Supreme Court earlier this year as being overbroad, prohibits the recording of conversations unless all parties give consent.
The rule presented challenges as camera-enabled smartphones gained in popularity and conversations that may have been unintentionally recorded meant that those handling the recording devices were technically breaking the law.
“We all recognized that was ridiculous and that was not the intent of the law,” said State Representative Elaine Nekritz, who represents the 57th District. "The ubiquity of cell phones has really changed that whole dynamic.
As a result, Nekritz is sponsoring a new version of the eavesdropping law that focuses on protecting conversations where there is a reasonable expectation of privacy. The bill sailed through the Illinois legislature with bi-partisan support and it is now up to the governor to sign it into law.
“You can expect that that conversation is private and if someone wants to record you, they should get your consent,” Nekritz said.
The proposed law also allows the recording of police officers performing their duties in public places. Nekritz said that would include protests and traffic stops.
Citizens had been prohibited from recording police officers in the performance of their public duties until that was struck down by the courts in 2013.
“The Illinois Supreme Court has made it very clear that police officers do not have an expectation of privacy while they’re on duty,” Nekritz said.
However, Nekritz said examples of unlawful eavesdropping against police include placing a hidden recording device in a police station or a judge’s chamber.
Critics said the proposed law sounds better than the old one, but that it does not make clear what is private and what is not
“It should be really easy to know before you do something whether it’s a crime or not and this law does not make that easy to know with respect to recording conversations in many situations,” said Jacob Huebert, a constitutional attorney for Liberty Justice Center.
Huebert points to other situations where one might interact with police or government officials in places that are not necessarily public.
“As a result of that you’re going to err on the side of [caution by] not recording things because if you get it wrong, you could go to jail,” Huebert said.
The proposed law comes with stiff penalties.
Unlawfully recording private citizens would carry a jail sentence of one to three years and eavesdropping on police or government officials would land you two to four years.
Senate Bill 1342 also extends police officers’ abilities to eavesdrop on crime suspects with the approval of a state’s attorney.
Nekritz said the next step is to have a thorough debate on police cameras including who has access to the recordings and how long they have to keep them.
Citizens to Abolish Red Light Cameras is calling on Governor Pat Quinn to veto the bill. The group’s director, Mark Wallace, said the bill is not written in a way that makes it clear that a citizen would be allowed to record police.
“If our elected officials can’t answer that simple question, then this bill should be vetoed and there should be a public debate before drafting any new eavesdropping legislation,” Wallace said.