What does the ACLU think of the bill?
It is good that the new eavesdropping bill 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.
What conversations does the eavesdropping bill apply to?
The eavesdropping bill on the Illinois Governor’s desk prohibits the recording of private conversations absent all-party consent or a warrant. It defines private to mean when a person intends the conversation to be private under circumstances that reasonably justify that expectation. Thus, there will be a statutory limit on recording private conversations, and no limit at all on recording non-private conversations.
When is a conversation private?
The term “private” in the Illinois statute is the same or nearly the same as similar terms in the federal eavesdropping statute and scores of state eavesdropping statutes that have been on the books for many decades. A host of judicial decisions, interpreting these statues and also the Fourth Amendment, have addressed whether people have a reasonable expectation of privacy in a variety of conversations involving a variety of circumstances. If the Illinois Governor signs the bill on his desk, the new statute’s line (was the conversation private?) will be interpreted in light of this well-developed body of judicial precedent.
When do police have a reasonable expectation of privacy?
Police clearly do not have a reasonable expectation of privacy against recording by civilians when they are on-duty in a public places and speaking at an ordinary volume. This was a holding of ACLU v. Alvarez, which protected the First Amendment right of civilians to audio record such non-private police conversations. But this is just one of the many circumstances in which police do not have a reasonable expectation of privacy. On-duty police generally will have no reasonable expectation of privacy when they speak to civilians, including in many non-public places. For example, police cannot reasonably expect to be free from audio recording by a home owner when they enter a private home to enforce a warrant, or by a suspect being interrogated inside a stationhouse interrogation room. ACLU v. Alvarez is just one of the many judicial decisions finding that on-duty police lacked a reasonable expectation of privacy against recording by the civilians they speak with. On the other hand, two off-duty police officers might have a reasonable expectation of privacy when they speak together in a squad car with the windows up and no one else present, or whisper to each other in a deserted public park. Whether the location of the conversation is public or private is one relevant factor among many in deciding whether there was a reasonable expectation of privacy.
When do other government employees have a reasonable expectation of privacy?
In light of the case law, on-duty government officials who knowingly speak with members of the public as part of the performance of their government jobs will generally not have a reasonable expectation of privacy against civilian recording of those conversations.
