Recent changes to Illinois Eavesdropping statutes are lawmakers’ latest attempts to balance the need for personal privacy and the desire to allow people to disseminate information in an era of smart phones, camcorders and other digital devices.
The new law, approved by the General Assembly in December and signed into law by then Gov. Patrick Quinn, still requires all parties to consent to recordings in a private setting. However, the new law makes a distinction between private and public settings, a move necessitated by the state Supreme Court declaring the old law — which didn’t do that — unconstitutional.
Illinois was one of only a dozen or so states that required so-called “two party consent” or essentially, approval from all sides when a recording was made. It was a felony to record people without their consent; a move that critics said was more aimed at protecting officials from being recorded than privacy rights.
But the state’s Highest Court struck that down last year, saying that wasn’t practical or constitutional in the modern era. As such, the new law narrowed that provision to require such approval only in a private setting. For instance, a person couldn’t secretly record a conversation in an office without consent of all parties but such a conversation, held on a busy public thoroughfare, is fair game.
That’s a far cry from the old measure which could have made criminals out of people who taped a political rally without obtaining consent from all in attendance. And while some have this could criminalize the practice of filming police officers while they are on duty, the ACLU of Illinois has largely praised the measure. From http://www.aclu-il.org/eavesdropping-bill-passes-in-illinois:
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.
However, critics counter the new law purports only to protect those conversations within a public area but doesn’t define what that is. And as such, that could have a chilling effect on people who wish to record the police while they are in the line of duty. The bill also imposes a higher penalty for those who are on the wrong side of the law when it comes to recording police. A person could be imprisoned for up to five years in prison. And while that’s less than the possibly 15-year sentence under the old law, it’s still far higher than the possible penalties for illegal recordings of an average person, which would be a maximum of three years behind bars.
The n ew law also expands the crimes for which police can get warrantless wiretaps. Offenses such as sexual assaults, murder and other heinous acts used to require approval of a judge. Now a State’s Attorney can make the call. Such an extreme move, however, can only occur for about 24 hours before a warrant or judicial oversight is required.
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Article Author: C. Matthew Miller
C. Matthew Miller is the sole practitioner at Miller Law Offices, P.C. He has been recognized by the National Trial Lawyers as a Top 100 Trial Lawyer and the American Society of Legal Advocates as a Top 40 Criminal Defense lawyer Under 40 in the State of Illinois. Mr. Miller concentrates his practice in Criminal Law, DUI, Criminal Record Expungements, Divorce and Child Custody.