Illinois Bar Journal

June 2015Volume 103Number 6Page 20

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Privacy

The Two Faces of Eavesdropping

The new Illinois eavesdropping law makes it easier to record police in public settings - but it also gives police more power to record citizens' conversations.

Under the Illinois Eavesdropping Act as it existed prior to March 2014, citizens could be - and were - prosecuted for recording the police and other public officials without their consent. The new law, passed in December and codified at 720 ILCS 5/14 et seq., makes it legal to do so in public settings without consent. But other provisions of the law make it easier for police to obtain permission to record private citizens, and the sum total is drawing mixed reviews from different parties for different reasons.

Defendants challenged the constitutionality of the old law, one of the most restrictive of audio recording in the nation, arguing that it violated substantive due process and free speech, and the Illinois Supreme Court struck it down. People v. Clark, 2014 IL 115776. The court noted that the statute had the effect of barring the recording of, for example, loud arguments on the street, political debates in a park, and public interactions between citizens and police officers, none of which "implicate privacy interests."

"Understandably, many people do not want their voices broadcast to others or on the Internet to be heard around the world," the justices wrote. "But to a certain extent, this is beyond our control, given the ubiquity of devices like smart phones, with their video and audio recording capabilities and the ability to post such recordings instantly to the Internet."

artwork for articlePublic conversations now fair game

After nine months without an eavesdropping statute in the state, lame duck Governor Pat Quinn signed a new Illinois Eavesdropping Act in December 2014 that allows citizens to record public conversations - including those with the police - without obtaining consent from all parties involved. However, conversations in which someone has a "reasonable expectation" of privacy still require all-party consent and cannot be "surreptitiously" recorded. See 720 ILCS 5/14-1(d) (defining "private conversation"); 720 ILCS 5/14-2(a) (setting out the elements of an eavesdropping offense).

The American Civil Liberties Union of Illinois (ACLU), which successfully challenged the old statute (American Civil Liberties Union of Illinois v. Alvarez, 679 F.3d 583 (7th Cir. 2012)), believes the rewritten law represents "a step forward" in that respect, says Adam Schwartz, senior staff counsel at the ACLU. "It limits the scope of the statute to just private conversations," he says. "If conversations are not private, there is no limit to recording; but if a conversation is private, you need all-party consent…. On the whole, the bill is drawing the line in the right place."

Previously, Schwartz says, the state "had correctly required all-party consent but incorrectly extended that mandate to both private and not private conversations. People were getting arrested and prosecuted for recording non-private conversations with on-duty police."

He cites the case of Chris Drew, an artist who committed civil disobedience and then recorded his arrest and was subsequently prosecuted for both. He also notes a case in which a defendant recorded a testy phone conversation with a police department's internal affairs division pressuring her to drop a complaint against an officer, and another in which two African American college students felt a traffic stop "getting edgy" and started to record the incident.

"These prosecutions were completely insane," Schwartz says. "We ought to have more accountability [for police]. There ought to be better documentation about what is going on in these police stops. The former eavesdropping act said you needed to get all-party consent."

What is 'surreptitious' recording, 'reasonable expectation' of privacy?

Jennifer Cifaldi, assistant state's attorney at the Adams County State's Attorney's Office in Quincy, sees the new statute as well intentioned but a legislative mess that is likely to cause as many problems as it solves.

The prior statute, with all its problems, had the advantage of being clear. "This is clear as mud," she says. "I struggle to [see how] anything positive comes out of this. I see a short law with a ton of exceptions. To me, that's always problematic.… You start to look at the different exceptions, and it's one of those things where the exceptions swallow the rule."

The problematic elements start with the definitions of "surreptitious" and "reasonable expectation" of privacy. Cifaldi can't imagine proving - particularly in the age of cell phones and other hand-held devices - that a defendant was being surreptitious. "Even if their cell phone is not out on the desk, people check their cell phones during a conversation all the time," she says. "[A defendant] could argue, 'She saw me take my phone out. How is that surreptitious?' This ultimately will get [resolved] in court cases testing the constitutionality of the statute and what it means….

"I don't want to be a naysayer," Cifaldi adds. "But it's hard for me to come up with a scenario, unless the defendant flat out admits he or she was being surreptitious, and it didn't fit any exceptions, where any lawyer with a bit of wit about him isn't going to carve out [a scenario] where one of the exceptions fit. That's going to tie my hands. What if this? What if that? There goes our possibility of prosecuting under that situation."

The inclusion of a "reasonable expectation" of privacy standard concerns Saleem B. Mamdani, an associate at Lewis, Longlett & Lannerd LLC in Quincy, although he sees positives in the law overall. "It's an improvement that you're incorporating an element of privacy and of surreptitious recording," he says. "The kind of activity contemplated in the ACLU v. Alvarez case, where the ACLU was seeking a declaratory judgment saying they could openly tape and record police officers in the course of duty, obviously that kind of activity should not be criminalized."

But, Mamdani adds, "The entire concept of going to the expectation of privacy standard is problematic. A virtue of the prior statute is that there was no lack of clarity - you knew when you were breaking the law. Now, there's a real question of what is an expectation of privacy, especially when we have to predict what other parties expect of us.… If I twiddled around with my phone, I don't know how surreptitious this is, in this day and age where everything can be recorded. Most public businesses have video recording."

Cifaldi expands upon that last thought to other settings. "When you go into a police department is there any expectation that conversations are not going to be recorded there?" she says. "In the courthouse there are signs about electronic recording being in use - anything you say can be recorded. Do we have an obligation to put that in Spanish and other languages? It opens the door to a whole mess of possibilities."

Among the specific exceptions that raise questions for Cifaldi is a provision that protects recordings made in the presence of a police officer. The text of that provision allows:

[r]ecordings of utterances made by a person while in the presence of a uniformed peace officer and while an occupant of a police vehicle including, but not limited to, (i) recordings made simultaneously with the use of an in-car video camera and (ii) recordings made in the presence of the peace officer utilizing video or audio systems, or both, authorized by the law enforcement agency.

720 ILCS 5/14-3(h-5).

"What if somebody is speaking to a police officer and someone else walks by?" she says. "If somebody sees something and they're talking to the police, and someone else walks by, are they a party to [the conversation]? What if they're recording it?"

Mamdani is pleased that the new law narrows the gap in enhanced penalties for eavesdropping on police, prosecutors, and others in "what I'll collectively call the law enforcement community," he says. The prior law made eavesdropping on a fellow citizens a Class 4 felony vs. Class 1 for law enforcement; under the new law, the latter will be only Class 3. 720 ILCS 5/14-4. "There's no question you need to have enhanced penalties," he says. "But I think it's a positive step that you have an evening of the field."

Cifaldi disagrees. "I think it's a problem," she says. "I like the idea that prosecutors and judges are given more deference." She draws an analogy to how "police and prosecutors and other law enforcement officials are afforded more protection with regard to battery cases: if you punch your neighbor, it's a misdemeanor, but if you punch a police officer, it's a felony."

More opportunities for police to record without a warrant

The new act also provides a fast track for police to conduct surveillance on citizens' private communications if they have reason to believe those citizens will imminently commit one of a number of qualifying offenses, such as drug deals or sexual assaults, in the succeeding 24 hours. See 720 ILCS 5/14-3.

Instead of requiring a warrant with approval of a judge, now police need only get the thumbs-up from their local state's attorney in a broader set of instances than in the past. See id. (providing all of the exemptions to the prohibition on eavesdropping). That piece of the law sunsets on January 1, 2018, providing the opportunity to review how (and how well) it's been implemented.

The ACLU, although supportive of the law in many respects, ultimately opposed its passage because it considered the police surveillance provisions to be a "poison pill," Schwartz says. "In the best of all worlds, we would have freedom from snooping and the First Amendment right to record conversations that aren't private, such as the behavior of on-duty police," he says. "We opposed the bill because of the exceptions for police if they are investigating a dozen or so new crimes."

The provisions mean that if the government suspects someone is about to engage in a particular crime, "the government is free to start snooping on that person's conversations without getting a warrant," Schwartz says. "We think when the government intercepts phone calls, or wires a police officer - electronic recording of conversations is very powerful medicine. With the exception of an emergency, those conversations should not be wired without a warrant."

State's attorneys conceptually took the position that they wanted Illinois to be a one-party consent state for all "forcible felonies," which could include everything from burglary to murder, says Steve Baker, of the Cook County Public Defender's Office. Failing that, he says, "they wanted expansion of the offenses where they could authorize eavesdropping for a short term in the investigation of certain crimes."

Historically, Baker says, state's attorneys were able to get 24-hour authority in imminently emergent cases like "risk of injury to a police officer or an informant - for example, the undercover detective getting into the back seat of a stranger's car for a drug deal - or imminent danger such as a kidnapping or abduction kind of case."

When the state's attorneys came forward with their "all forcible felonies" proposal, the ACLU and the Illinois State Bar Association pushed back, Baker says, asserting that was "overly inclusive" and that prosecutors "should be obligated to justify why [they] needed [the authority] in a particular offense, such as [they've] done over the years with hostage situations and drug buys."

After some back and forth at the legislative level, prosecutors were invited to come forward with a specific list of the offenses they wanted included, Baker says. The statute includes such instances as gun running, which Baker considers analogous to the undercover drug-buy justification, and sexual assaults currently under investigation. "We distinguish between the emergency situation of an undercover drug buy and kidnapping scenarios, versus a completed offense" where time is less of a factor, he says.

In the end, however, the ACLU, Cook County Public Defender's Office, and ISBA took the lead in objecting to the statute as overly broad in granting prosecutorial authority to conduct surveillance, Baker says.

"We were basically articulating the concerns…that what should have been a clean bill to conform statute to case law about what's private and what's not was, in our view, a power grab by the state's attorneys to get more authority, taking it away from judges," he says. "Their response was, it's only for 24 hours and only for the specified offenses."

Baker adds, "There was tension between the ACLU, the state bar, my office, and the state's attorney in terms of how far they can go in authorizing eavesdrops. We wanted to restrict it to individual justifications, by offense. They took advantage to leapfrog and put all the offenses together, and we ended up with what we ended up with."

Mamdani is concerned about some of the exceptions carved out in this part of the law as well, including one that allows a person to record a conversation in an effort to obtain evidence of criminal activity. That text protects:

Recording of a conversation made by or at the request of a person, not a law enforcement officer or agent of a law enforcement officer, who is a party to the conversation, under reasonable suspicion that another party to the conversation is committing, is about to commit, or has committed a criminal offense against the person or a member of his or her immediate household, and there is reason to believe that evidence of the criminal offense may be obtained by the recording.

720 ILCS 5/14-3(i).

"Exactly how far are we going to go?" he says. "Where do we draw the line, and how much in real time?"

And Mamdani wonders what other types of offenses could fall into this exception. "Exactly how far does that stretch - if a government employee is committing some sort of graft, and I'm a taxpayer, I'm being deprived of their honest services," Mamdani says. As a domestic relations attorney, he adds, "I could see one of my clients saying, 'I thought they were going to violate the order of protection, so I recorded the call.'

"It's a very, very wide exception with not very clear boundary lines," he concludes. "This is the kind of thing that will have to get fleshed out with case law development."

But it's probably not the only thing.

Ed Finkel is an Evanston-based freelance writer.

One-Party v. Two-Party Consent

State and federal laws prohibiting the recording of conversations are generally classified as either "one-party" or "two-party" consent statutes.

One-Party Consent Statutes:

  • Generally provide that it is not illegal to record a conversation between multiple parties, so long as at least one party to the conversation has consented to the recording
  • The practical effect is that individuals may record conversations that they are a party to (i.e., the recorder is the one party who has consented)

Two-Party Consent Statutes:

  • Generally provide that it is illegal to record a conversation unless all parties to that conversation have consented
  • Also referred to as "all-party consent" statutes
  • Statutes are classified as two-party consent even if they only require it in limited situations (e.g., the Illinois Eavesdropping Act, which only requires two-party consent for conversations in which a party has a reasonable expectation of privacy)

Federal Law

  • "It shall not be unlawful . . . for a person . . . to intercept a wire, oral, or electronic communication where such person is a party to the communication or where one of the parties to the communication has given prior consent . . . ."
  • 18 U.S.C. § 2511(2)(d)

State Law

  • 38 states and the District of Columbia require only one-party consent to record a conversation
  • 12 states require, in at least some circumstances, the consent of all parties to record a conversation

For a detailed analysis of state and federal recording laws, see http://www.rcfp.org/rcfp/orders/docs/RECORDING.pdf.

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