JURIST Guest Columnist Jacob Huebert, of the Liberty Justice Center, discusses a new Illinois eavesdropping law and argues that the Illinois legislators should repeal the law as it violates constitutional principles and individual freedoms…

For a few weeks in late 2014, the police killings of Michael Brown in Ferguson, Missouri and Eric Garner in New York City dominated the news, and few topics were hotter than police accountability and the importance of citizens’ right to record interactions with law enforcement.

While these events and issues were fresh in people’s minds, Illinois legislators provoked public outrage by reviving an eavesdropping law that the Supreme Court of Illinois struck down earlier in the year—in part because it prohibited citizens from recording public interactions with police.

Sponsors and supporters of the new version of the law, including Democrat and Republican legislators and the Illinois chapter of the American Civil Liberties Union, insisted that the new statute would allow citizens to record police and that the public’s concern was unwarranted. In fact however, Illinois’ new eavesdropping law is confusing and harsh. Although it does not ban all recording of police—the court took that off the table—it discourages it about as much possible.

But before getting into those details, some background is in order. In most states, it is always legal to record your own conversations with police or anyone else. You never have to get the other person’s consent or tell them you are recording.

Twelve states, however, have “two-party consent” laws that generally forbid recording a conversation unless every participant consents. Typically these are part of an “eavesdropping” or “wiretapping” statute, even though most people (and dictionaries) consider eavesdropping and wiretapping to involve listening in on someone else’s conversation, not recording your own.

A previous version of Illinois’ “two-party consent” law enacted in 1994 was one of the country’s most controversial because it was unusually strict and seemed designed to prevent citizens from recording interactions with police and other government officials. Unlike other two-party consent laws, it did not include any exceptions allowing citizens to record police openly (rather than secretly) or in public settings. It did however allow police to record many types of encounters with citizens. It also made illegally recording police, prosecutors or judges a Class 1 felony—with a sentence of four to 15 years in prison—but made illegally recording a private citizen a Class 4 felony, with a lower sentencing range of one to three years in prison.

And in fact the government often enforced the law against people who recorded their interactions with police or others in government. For example, in 2009 Christopher Drew was charged with a felony for recording police as they arrested him for selling his artwork on a downtown Chicago sidewalk. In 2010 Michael Allison was charged with a felony for carrying a tape recorder into his own court hearing after the court refused to provide him with a court reporter. (“You violated my right to privacy,” the judge told him in open court.)

That same year Tiawanda Moore was charged with a felony because she recorded conversations with internal affairs investigators at a Chicago police station after they seemed to be unconcerned about her report of an officer’s unwanted sexual advances. (A jury acquitted her.)

Critics charged that, by preventing people from recording police and others, the law violated the right to free speech. The courts ultimately agreed. In 2012 the US Court of Appeals for the Seventh Circuit ruled in ACLU v. Alvarez that the statute likely violated the First Amendment by preventing citizens from openly recording police officers who were performing their duties in public and speaking loud enough for bystanders to hear them. The US District Court for the Northern District of Illinois later concluded that the statute indeed violated the First Amendment as applied to that specific conduct.

In 2014 the Supreme Court of Illinois struck down the entire statute because it was overbroad and violated the First Amendment in People v. Clark and People v. Melongo. The court held that the law was not narrowly tailored to serve the government’s interest in protecting people’s privacy because it prohibited recording not only private conversations but also public conversations, including “public interactions of police officers with citizens.”

Before the end of the year the Illinois General Assembly passed, and outgoing Governor of Illinois Pat Quinn signed, the new eavesdropping law, which is similar in many ways to the old one. Like the old law, the new statute prohibits recording a conversation without the consent of all parties—though now only when the recording is made “surreptitiously” and at least one party to the conversation has a “reasonable expectation” of privacy.

Like the old law, the new statute punishes unlawfully recording police, prosecutors and judges more harshly than it punishes unlawfully recording anyone else—though it does not punish it as severely as before. Now unlawfully recording a conversation with a police officer, prosecutor or judge is a Class 3 felony, with a prison sentence of two to four years, while recording a conversation with anyone else is a Class 4 felony, with a sentence of one to three years. So, to be sure, the new law is less offensive in some respects than the old one.

But it still has serious problems. For one, it is vague. It does not explain how to determine whether someone has a reasonable expectation of privacy, so citizens often cannot know whether recording a given conversation would be legal or a crime. Courts consider questions of when and where someone has a reasonable expectation of privacy on a case-by-case basis, considering numerous factors, usually in the context of determining whether police conducted a Fourth Amendment “search.” It is not reasonable to expect ordinary people to know that entire body of case law, let alone apply it to their own unique circumstances on the fly.

True, the Seventh Circuit and Supreme Court of Illinois have said that police do not have an expectation of privacy in “public” encounters with citizens, so it should be legal under this law to record police in public. But the courts did not explain what counts as a “public” interaction, so even someone familiar with those decisions could not be sure whether it would be legal to record in many circumstances. As a result people who want to avoid spending years of their lives in prison are likely to avoid recording police (or anyone) anywhere, except perhaps in the most obviously public settings.

And what about recording in private settings? Presumably that is where crooked cops and politicians prefer to perform their worst deeds, so people’s right to record them there should receive at least as much protection as the right to record them in public.

The new statute’s focus on recording “surreptitiously” is not as big an improvement as it might seem. Surreptitious recording could after all be necessary to expose police misconduct—so banning it could help prevent exposure of misconduct.

The statute overall appears to be designed, like the old one, to protect and privilege police. Although the maximum sentence under the new law is shorter than the former maximum, the statute still gives longer jail terms to people who record police, prosecutors and judges. The only apparent purpose for that is to make people especially afraid to record police, prosecutors and judges. The new law also allows police to record certain interactions with citizens and to secretly eavesdrop on citizens’ conversations for 24 hours without a warrant during investigations of certain crimes.

In sum, the new law criminalizes recording to the maximum extent that current case law allows. It is a blanket ban on recording without consent, with a narrow carve-out for the (mostly unspecified) circumstances in which courts have said that the state must allow recording, with special punishments for citizens who unlawfully record police and special privileges for police who record citizens. If a legislature wanted to discourage recording—especially of interactions with police—as much as possible, it would pass this law.

Will the court uphold it? It should not. Because citizens often cannot know in advance whether recording a conversation is legal, the law is unconstitutionally vague and violates Due Process. And because the statute’s vagueness will deter people from making recordings for fear of prosecution, it also frustrates free speech and violates the First Amendment.

But before the courts can weigh in on the statute, the legislature should just repeal it. Any replacement should, at a minimum, explicitly protect people’s right to record their own interactions with government officials regarding their official duties, regardless of when or where they occur. The overwhelming majority of states respect that right, and Illinois has no justification for not doing so—especially given its well-known history of crime and corruption at all levels of government. If their legislators will not do that much, Illinoisans should question whose interests they are looking out for.

Jacob Huebert is senior attorney at the Liberty Justice Center, the Illinois Policy Institute’s free-market public-interest litigation center. He is the author of a book “Libertarianism Today” and his writing has been published widely in scholarly, professional and popular publications. Jacob is admitted to practice in the State of Illinois, as well as the US Supreme Court, the United States Court of Appeals for the Seventh Circuit, the United States Court of Appeals for the Sixth Circuit and several other federal courts.

Suggested citation: Jacob Huebert, What’s Wrong with Illinois’ New Eavesdropping Law, JURIST – Professional Commentary, Jan. 29, 2015, http://jurist.org/professional/2015/01/jacob-huebert-illinois-eavesdropping-law.php.

This article was prepared for publication by Christina Alam, an Assistant Editor for JURIST Commentary. Please direct any questions or comments to her at commentary@jurist.org