The Senate passed an eavesdropping bill before the spring session ended, but the House failed to agree.

When the Illinois Supreme Court in March struck down the state's eavesdropping law as overly broad and thus unconstitutional, lawmakers were under pressure to quickly draft a new law to protect the privacy interests of citizens whose conversations may now be recorded without their consent.

Just before the General Assembly recessed in May, the Senate passed a new eavesdropping law (HB 4283), but the House adjourned before taking action on a Senate amendment.

Prosecution v. defense

The former eavesdropping law required two-party consent to record a conversation with one or more persons, but it made no exceptions for loud public conversations, for example, during a sporting event or street argument. One of the cases that led to the Illinois Supreme Court's invalidation of the law involved a man who was prosecuted for taping a lawyer and a judge in a courtroom.

The U.S. Circuit Court of Appeals, Seventh Circuit, also struck down the law in a 2011 ruling in a case brought by the ACLU against the Cook County State's Attorney. In that case, the court held it was unconstitutional to criminalize, under the eavesdropping law, the recording of police officers performing their public duties.

House Bill 4283 makes it a crime to surreptitiously record what would reasonably be expected to be private conversations, but it excepts loud public arguments, the recording of police officers carrying out their public duties, and other obviously public happenings.

The definition of private conversation under the Senate's amendment of HB 4283 is any communication between two or more persons intended to be of a private nature under circumstances "reasonably justifying that expectation."

"If I live in an apartment building and I'm screaming at the top of my lungs that I'm going to kill my wife, that's not private," said Stephen Baker, the legislative liaison for the Cook County Public Defender. "But if it's pillow talk, obviously that would be private."

The Senate amendment, however, contains exemptions that allow police officers, with permission from prosecutors, to record conversations as part of felony criminal investigations without a judicial warrant. Baker and representatives from the American Civil Liberties Union object to those exemptions, and they are likely to be the subject of continued debate when the General Assembly reconvenes.

Warrant or no warrant?

Matt Jones, associate director of the Illinois Office of the State's Attorneys Appellate Prosecutor and lobbyist on behalf of the state's 102 prosecutors, said he made a case for so-called "one party" rather than two-party consent, but that his wishes were rejected. Thirty-eight states have one-party consent, which allows criminal investigators to record in any situation without a judicial warrant. However, Illinois has a very strong privacy provision in its Constitution which most interpret as barring one-party consent.

Although Jones supports the version of the bill passed by the Senate, he said that police should have unfettered authority to record in criminal investigations to collect evidence.

"When we first met, the ACLU had their proposal…. They drafted a tighter definition of privacy that they said was modeled after California, which is hardly a conservative bastion," Jones said. "I said if we're going to adopt that, let's adopt what they also have, which includes a law enforcement exemption for all violence. Law enforcement could wear a wire if it was calculated to gather evidence involving a crime of violence. The ACLU said 'no.'

"We think there needs to be a balanced bill with tools to protect the public," Jones said.

Baker and Harvey Grossman, the legal director for the ACLU of Illinois, disagreed with Jones' characterization.

"We have a very simple goal," Grossman said. "That is to maintain two-party consent and ensure that the government gets a warrant when it starts recording [criminal suspects and others involved in a criminal investigation]. That's it. It's not complicated. There has been no showing that a prosecution has been inhibited because they were required to get a warrant."

Under the Senate amendment, law enforcement may record without a warrant for "qualified offenses," mostly felonies, which include certain drug distribution crimes, first degree murder, solicitation of murder for hire, predatory criminal sexual assault of a child, criminal sexual assault, aggravated criminal sexual assault, residential burglary, aggravated arson, kidnapping, aggravated kidnapping, child abduction, trafficking in persons, involuntary servitude of a minor, and gunrunning.

"We think there are times when it's appropriate to have the tool," Jones said of the exemptions. "Why do 38 states get to do this? There are times where evidence is of a temporary nature" and law enforcement needs to get relevant statements.

Baker noted that in the past, when prosecutors sought exemptions, they presented a specific list of crimes and clearly articulated their reasoning. "But now, they're viewing this as the best opportunity they've had in 20 years to get a bigger bite of the apple."

Meanwhile, it remains open season for recording conversations without consent in Illinois, at least until the fall veto session.