Thanks to Illinois, we have a clear winner for the honor of “Worst Law Made in 2014.” It takes real nerve to write a law that claims to protect citizens’ rights while actually violating two rights in the Constitution.
I’m talking about Senate Bill 1342. This is a law that makes it a felony to secretly record private conversations. The bill passed the State House and Senate and is awaiting Governor Quinn’s signature.
A previous law had been overturned by state and federal courts in 2012. That law was considered too broad as it would have criminalized recordings of sports games as well as police conduct. SB 1342 attempts to “fix” the problem by limiting criminalization to recording of “private” conversations where at least one person in the conversation has a reasonable expectation of privacy recognized by law. That provision doesn’t sound too bad, even if it is super vague.
However, SB 1342 has two big problems. First, the bill contains a laundry list of exemptions for police officers. A police officer can record private conversations during an investigation of child pornography or sexual exploration of a child if the officer has the approval of a state attorney. This is highly worrisome considering that the Constitution requires police to obtain a warrant from a judge to conduct a search. The police could say that recording a private conversation is not a search, but police wouldn’t be listening in on a conversation if they weren’t looking for evidence of a crime. SB 1342 looks like a power grab by police trying to circumvent the courts.
The second problem with SB 1342 can be found in the sentencing guidelines of the bill. If an individual is found guilty of recording a private conversation between ordinary citizens, then it’s considered a class 4 felony for first time offenders and a class 3 felony for repeaters. However, recording a “private conversation” involving a police officer, state attorney, attorney general, or a judge during the performance of their official duties results in a class 3 felony or a class 2 felony for repeat offenders. In other words, it is a worst crime to record the private conversations of police or government officials than it is to record ordinary citizens.
Proponents of the bill claim that the purpose is to protect the right of privacy. The language of the bill indicates that the real purpose is to expand the powers of state police. The list of exemptions is mostly for police officers.
Under the bill, it is perfectly legal for police to record private conversations if the police suspect there is exploration of a child. Also under the bill, it is perfectly legal for police to record traffic stops or to record when emergency sirens are on. And yet, when ordinary citizens try to record the police, the ordinary citizen is punished more severely.
Police can legally record ordinary individuals but the bill attempts to make it a crime if ordinary citizens attempt to record the police.
This one-way street is fundamentally unconstitutional. The 7th Circuit, the circuit that oversees Illinois, has made it very clear that audiovisual recordings are part of free speech and that infringement of audiovisual technology violates the right to free speech. More importantly, the 7th Circuit also held that the purpose of the First amendment is to protect the “gathering and dissemination of information about government officials performing their duties in public.” It is the right of citizens to record police officers during their official duties and to share that information with the greater public.
SB 1342 proponents will point out that the bill only criminalizes the recording of private conversations. If a police officer is interviewing a witness at a police station, it would be illegal for a private citizen to record that conversation without the consent of the officer and the witness (the officer needs the consent of the witness). Recordings like the death of Eric Garner would not be considered a “private” conversation and would not prosecutable under this bill.
The problem is that the definition of “private” under the bill is extremely vague. The “expectation of privacy” has to be recognized by law, but laws change all the time. Who can say whether “privacy” won’t expand to include areas we normally think of as public? If Europe can expand privacy to include the Internet, it’s hard to tell where the privacy line will expand to.
Moreover, police prosecutions are not the point of the controversy. As the Eric Gardner indictment, or lack thereof, showed, not even video recording is a guarantee that police will be held accountable if they go overboard. The real point of recording police is so that the larger public will be informed. The protests that sprang out of Ferguson and New York might be frustrating, annoying, and lack a clear goal, but the protests are the point. The people have the right to know and the right to be outraged by what the police do in their name.