Illinois Policy:

Earlier this year, the Illinois Supreme Court struck down a state eavesdropping law that made it a crime for citizens to record conversations with police or anyone else without the other person’s permission. The court held that the old law “criminalize[d] a wide range of innocent conduct” and violated free-speech rights. In particular, the court noted the state could not criminalize recording activities where there is no reasonable expectation of privacy, including citizens’ “public” encounters with police.

Now the old law is back, with just a few changes, in a new bill sent to the governor’s desk by the Illinois Senate on Dec. 4. The bill not only passed, but did so overwhelmingly with votes of 106-7 in the House on and 46-4-1 in the Senate.

The new version is nearly as bad as the old one.

Under the new bill, a citizen could rarely be sure whether recording any given conversation without permission is legal. The bill would make it a felony to surreptitiously record any “private conversation,” which it defines as any “oral communication between 2 or more persons,” where at least one person involved had a “reasonable expectation” of privacy.

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citizens can’t be expected to know for sure precisely which situations give rise to an “expectation of privacy” and which don’t. The Illinois Supreme Court said that police don’t have an expectation of privacy in “public” encounters with citizens, but it did not explain what counts as a “public” encounter. So if this bill becomes law, people who want to be sure to avoid jail time will refrain from recording police at all, and the law will therefore still effectively prevent people from recording police.

The bill would also discourage people from recording conversations with police by making unlawfully recording a conversation with police – or an attorney general, assistant attorney general, state’s attorney, assistant state’s attorney or judge – a class 3 felony, which carries a sentence of two to four years in prison. Meanwhile, the bill makes illegal recording of a private citizen a class 4 felony, which carries a lower sentencing range of one to three years in prison.

There’s only one apparent reason for imposing a higher penalty on people who record police in particular: to make people especially afraid to record police.

But I thought that we had a due process right to record police in the performance of their duties?  In fact, I think judges have said so time and time again, and again, and again.

Instead of passing this stupid bill, they should have passed what reader Ned Weatherby calls Herschel’s Law.