Illinois Law Does Not Prohibit Recording On-Duty Law Enforcement

On Twitter, it started with circulating the headline of an article published on The Free Thought Project titled “Illinois Just Made it a Felony for Its Citizens to Record the Police and the Media is Silent.” The article claimed that Illinois passed a law making it a felony to record police officers. That is not factual. The emotional state of many Americans with the thought that a law prohibits the video recording of police officers using excessive force, was at the forefront of the headline that misrepresents the amended Illinois law.

Snopes has already printed about the apparent confusion of the law, which isn’t a new law at all but rather, an amendment to an existing law and does not prohibit the recording of on-duty police officers.

The Free Thought article states that the wording from the legislation is vague, and it included the following;

(a) Eavesdropping, for a first offense, is a Class 4 felony (from Ch. 38, par. 14-4) and, for a second or subsequent offense, is a Class 3 felony.

(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.

Had readers clicked the link to the Bill, they would have read two words that should have stood out.  Those two words are;

1. eavesdropping

2. private

When I read the first tweet reporting this, (and expressing disgust that Illinois would legislate such a law), I didn’t respond.  I didn’t respond because my first impression that anyone reading the word “eavesdropping” would understand its meaning.  I was wrong, not taking into consideration that people passing the tweet around are not residents of Illinois understanding how “eavesdropping” is defined in Illinois law.

Illinois law, 720 ILCS 5/Art. 14 gives the following definitions;

(a) Eavesdropping device.
    An eavesdropping device is any device capable of being used to hear or record oral conversation or intercept, retain, or transcribe electronic communications whether such conversation or electronic communication is conducted in person, by telephone, or by any other means; Provided, however, that this definition shall not include devices used for the restoration of the deaf or hard-of-hearing to normal or partial hearing.

(b) Eavesdropper.
 An eavesdropper is any person, including law enforcement officers, who is a principal, as defined in this Article, or who operates or participates in the operation of any eavesdropping device contrary to the provisions of this Article.

Even in common logic, “eavesdropping” conveys a person secretly listening in on a conversation without the knowledge of those having the conversation.  As far back as I can remember, it’s always been illegal in Illinois to record a conversation without the knowledge and consent of the other party.  I remember when answering machines came out with the “record” button, and some of the packaging had a sticker about Illinois law.

In March 2014, the Illinois Supreme Court struck down a previous amendment that legally barred the recording of conversations without the consent of all parties. That bar prohibited recordings of police encounters unless officers gave consent.

The new amendment that passed in the Illinois Congress was sponsored by Democratic Senators Kwame Raoul and Elaine Nekritz.

The American Civil Liberties Union (ACLU) praised part of the amended statute, while disagreeing with the portion that allows the police to record without first obtaining an order of the court.

The ACLU wrote on their website that they worked closely with members of both the House and Senate to secure passage of a measure that restored all-party consent for audio recording conversations in Illinois and provides needed protections for civilians audio recording public officials doing their public duty in a public place.

Their full statement says;

It is good that the new eavesdropping statute enacted during the veto session generally protects our reasonable expectations of privacy in our conversations, phone calls, and electronic communications from unwanted recording or interception, and that it does so without intruding on our First Amendment right to expose government misconduct by recording the non-private conversations of on-duty government officials. The new statute does this by prohibiting the recording and intercepting of only *private* conversations, unless there is all-party consent or a warrant. So the new statute generally provides that police, informants, or other members of the public cannot record our private conversations without our permission. 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. The new statute respects the appellate court ruling in the case the ACLU brought against the Cook County State’s Attorney’s Office: on-duty police officers have no reasonable expectation of privacy in their conversations in public places.

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. We know of no evidence that the prior version of the statute, which required police to seek judicial approval, was any impediment to law enforcement in these instances. We are concerned about the expanded number of cases where no judicial officer will provide a check on police.  On this basis, the ACLU of Illinois opposed the new statute.

Other than Snopes, the Raw Story is the only other internet source that I’ve found thus far that addresses the misleading of the story that was first circulated.

In case anyone is wondering, it is also an offense in Illinois to transfer writing, images, data or intelligence of any nature in whole or in part via computer, when the sending and receiving parties intend the electronic communication to be private.