To subscribe to Capitol Fax, click here. Flawed eavesdropping bill heads to governor’s desk Thursday, Dec 4, 2014 * As you already know, the Illinois Supreme Court declared the state’s eavesdropping law to be unconstitutional. There have been several attempts to draft a new law, and the latest has cleared both chambers. Some bullet points from the bill’s sponsor… _An eavesdropper is someone who uses an eavesdropping device to secretly record a private conversation without the consent of all parties involved in the conversation. A conversation is considered private if at least one of those involved had a reasonable expectation the conversation is private. _An eavesdropper is anyone who uses a device to secretly record electronic communications without the consent of everyone involved. _An eavesdropper is someone who discloses the content of a private conversation or private electronic communication without permission. _The penalty for eavesdropping on a law enforcement officer, state’s attorney or judge is reduced from a Class 1 felony to a Class 3 felony. _Law enforcement can use an eavesdropping device to record conversations around certain forcible felonies with the approval – written or verbal – of the local state’s attorney. State’s attorneys must submit reports annually explaining how often this exemption was used. * The “discloses the content of a private conversation or private electronic communication without permission” stuff troubles me. A lot. Here is the language… Uses or discloses any information which he or she knows or reasonably should know was obtained from a private conversation or private electronic communication in violation of this Article, unless he or she does so with the consent of all of the parties. * Private conversation defined… For the purposes of this Article, “private conversation” means any oral communication between 2 or more persons, whether in person or transmitted between the parties by wire or other means, when regardless of whether one or more of the parties intended the their communication to be of a private nature under circumstances reasonably justifying that expectation. * The reasonable expectation definition should mean that somebody could record a police officer in a public space (which is what the state Supreme Court case was about) without first obtaining permission… A reasonable expectation shall include any expectation recognized by law, including, but not limited to, an expectation derived from a privilege, immunity, or right established by common law, Supreme Court rule, or the Illinois or United States Constitution. But… 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. So, unless we get another top court case, I figure people will still be arrested if they do something like record police officers who are in their homes. * Now, let’s move on to the definition of private electronic conversations… …any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or part by a wire, radio, pager, computer, electromagnetic, photo electronic or photo optical system, when the sending or receiving party intends the electronic communication to be private under circumstances reasonably justifying that expectation. So, forwarding a private e-mail would be a crime? More importantly, if a journalist receives a forwarded private e-mail (which happens more than you might think), could the journalist be charged with a crime if it results in “disclosure”? Sure looks that way. Not cool at all. I’m told this was inserted at the insistence of the Senate Democrats, but it was done in such a way that if (when) a court strikes it down the action wouldn’t kill off the rest of the law. - Posted by Rich Miller

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