Originally Posted Online: Dec. 30, 2012, 6:00 am
Last Updated: Dec. 30, 2012, 12:35 pm

Editorial: Kill police eavesdropping law

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The Dispatch and The Rock Island Argus

When lawmakers come back to Springfield next week for the lame duck session, all manner of mischief is predicted. Only Democrat leaders can guess what will happen on key issues such as pension reform.

But while rank lawmakers await their leaders' pleasure, they should take a moment to correct a bit of legislative mischief that has been on the books in Illinois for far too long: the law prohibiting citizens from recording conversations without the other parties' permission.

Illinois is the only state that criminalizes audio recording of police performing public duties in public places and repeated efforts to repeal that portion of the state eavesdropping law have met with resistance from law enforcement officials and in the General Assembly.

Several organizations and courts have found the police provision of the law unconstitutional. Dare we hope that the U.S. Supreme Court, which last month refused without comment to lift a ban on enforcement of that portion of the statute, has struck the final blow, not just to part of the law, but to all of it?

The high court's refusal to hear the case reinforces a 7th U.S. Court of Appeals ruling that called Illinois' law prohibiting recording police in the line of duty a violation of free speech and free press.

The American Civil Liberties Union and editorial pages, including this one, have campaigned hard against the provision that limits citizens ability to hold law enforcement accountable for their actions. Astonishingly, violators of that provision of the law can face 15 years in prison simply for aiming their cellphone at police and hitting record. (The law does not apply to video, only sound.)

Various courts agreed, including the 2-1 majority at the 7th Circuit in ruling against the Cook County state's attorney's effort to lift the recording ban.
"The Illinois eavesdropping statue restricts a medium of expression commonly used for the preservation and communication of information and ideas, thus triggering First Amendment scrutiny," appellate justices said, adding that the "statute restricts far more speech than necessary to protect legitimate privacy interests."

State Rep. Elaine Nekritz, an aggressive champion of legislation to lift the portion of the law relating to police, has suggested that the high court ruling should end the controversy. "If it's unenforceable, it's unenforceable," the Associated Press quoted the Northbrook Democrat as saying, making repeal of the law unnecessary.

We respectfully disagree. Rather, we believe the high court decision provides an opportunity to strike the whole terrible eavesdropping law, not just the police provision, from the books forever.

Illinois is one of only 12 states where every party to any conversation -- not just those involving public officials -- must agree to an audio recording of it.

Eavesdropping is defined as use of "an eavesdropping device to hear or record all or any part of any conversation" without getting the other parties' permission. That 1961 law was made long before the advent of cell phones and other handheld recording devices. Given the proliferation of such devices, potential for mischief by one of those parties is endless because the law can subject the recorder not only to civil penalties, but to criminal ones, regardless of their intent in making the recording. It remains a law in search of a problem. Indeed, it made little sense 50 years ago to curb free speech in such a way, and it makes even sense less today.

Why not remove it from the books once and for all and end the potential for any future mischief?