Police in Illinois could soon have broad new powers to listen to private conversations under a bill passed by the state legislature last week.
The bill addresses an Illinois Supreme Court ruling that struck down Illinois’ law regarding consent to record conversations, but the proposal has some legal groups concerned because it reduces judicial oversight of police eavesdropping.
Illinois was previously one of the only states in the nation to require consent from all parties when recording conversations. That changed in March of this year, when the Illinois Supreme Court decided the state’s law requiring all parties to consent to recording a conversation was unconstitutional. Several Illinois residents had been charged with felonies for recording police in public or for recording phone conversations without telling the other party.
State Rep. Elaine Nekritz, D-Northbrook, sponsored SB1342 in the Illinois House. The bill makes it illegal once more to record a private conversation without the consent of all parties to the conversation. The bill passed both the House and the Senate with wide margins last week.
“Illinois for decades has made the policy decision to protect conversations that were intended to be private,” Nekritz said. “As a result, we have been in the minority of states that have required every party to a conversation to consent to a recording. Without any statute in place, it’s wide open; anybody can record anybody at any time. We thought it was important to close that loop and to make sure we – in a constitutional way, according to the direction of the Supreme Court – reinstate that all-party consent rule.”
The Supreme Court’s decision in People v. Melongo said the state’s previous law was a violation of the First Amendment right to free speech. The court called the law “simply too broad” because it criminalized “a wide range of innocent conduct” like recording a loud argument on the street or yelling fans at an athletic event.
“None of these examples implicate privacy interests, yet the statute makes it a felony to audio record each one,” wrote Justice Rita Garman in a unanimous decision.
Nekritz’s bill attempts to address that broadness by limiting the scope of the law to conversations that would reasonably be expected to be private. Electronic communications like emails would be protected from disclosure under the bill, and it allows recording of police in public.
The bill also expands the list of situations in which police can intercept private communications without permission from a judge. In a letter to the legislature opposing the bill, Stephen Baker, legislative liaison for the office of the Cook County Public Defender, said the existing exemptions all dealt with emergency situations in which there isn’t enough time to seek a warrant from a judge. Baker said the non-emergency crimes that would be covered under Nekritz’s bill are a “wish list” for state’s attorneys.
“It was simply a list of as many offenses as prosecutors could get,” Baker said.
He notes that the right to privacy is included in Illinois’ constitution, but Nekritz’s bill would allow state’s attorneys instead of judges to authorize eavesdropping in non-emergency situations. Essentially, he said, the bill lets state’s attorneys “act as mini-judges when they choose to.”
“An independent judiciary oversees our zealous police agencies, who are often engaged in the competitive business of ferreting out crime,” Baker said. “Pressures to solve crimes often conflict with constitutional protections of our residents. Thus, the judiciary stands as a protector of the privacy rights of all those in Illinois. Their role should not be diminished by unprincipled expansion of state’s-attorney-authorized eavesdrops.”
The bill requires state’s attorneys to provide reports of how often they authorize police eavesdropping.
The Cook County Public Defender’s office opposed the bill, along with the Illinois State Bar Association and the American Civil Liberties Union of Illinois.
Ed Yohnka, spokesman for the ACLU of Illinois, characterized the bill as an overreach of law enforcement power.
“In all of the conversations we had about this, we never heard or saw any evidence that any of these crimes were being under-investigated or under-solved as a result of not having this power,” Yohnka said. “This is a pretty dramatic expansion of those exceptions.”
The bill will be sent to the governor’s office, where outgoing Gov. Pat Quinn or incoming governor Bruce Rauner may approve or veto it. Rauner is scheduled to take office on Jan. 12.
Contact Patrick Yeagle at pyeagle@illinoistimes.com.
This article appears in Dec 11-17, 2014.
