An Analysis of the Draconian Application of Illinois' Eavesdropping Law 720 ILCS 5/14

This article has been used as a reference source at Wikipedia http://en.wikipedia.org/wiki/Telephone_recording_laws

Illinois, the Land of Lincoln, aptly put since Lincoln was a usurper and despot, is one of the most notorious States for corruption and rights abuse. The festering pustule that is Chicago infects the rest of the State’s bloodstream by virtue of its government sponsored criminal enterprise. Chicago’s ills affect the rest of Illinois for the laws written to remedy that bastion of corruption. This article discusses the Illinois Wiretapping Law found at 720 ILCS 5/14.

As an example, I used a case I am somewhat familiar with involving a man who requested a court reporter and was denied. He then informed a clerk of the court that he would bring his own recorder. The judge later questioned him about the use of a recorder, which he did not deny. That information was later used against him in charging 5 violations of the Illinois Wiretapping Law. The case I refer to can be found here.

First, some glaring violations of due process are evident. The article states:

Just after he walked through the courthouse door the next day, Allison says Crawford County Circuit Court Judge Kimbara Harrell asked him whether he had a tape recorder in his pocket. He said yes. Harrell then asked him if it was turned on. Allison said it was. Harrell then informed the defendant that he was in violation of the Illinois wiretapping law, which makes it a Class 1 felony to record someone without his consent. “You violated my right to privacy,” the judge said.

This appears as though the judge, Kimbra Harrell, was conducting a criminal investigation by questioning Allison about the possible commission of a crime. If there was evidence of a crime, why was Allison not arrested, supported by a sworn complaint by the judge? The questioning of Allison by Judge Harrell violated his right to silence since the judge was gathering information used to charge the commission of a crime. The judge had no reasonable suspicion other than that of the clerk who probably mentioned it to the judge. There was no criminal act taking place at the time, since yesterday had passed where the alleged violation occurred, and I see no evidence of the State possessing the actual recording. Allison is being charged based on his answers to Kimbrell’s questions which were unlawful. This does not speak to any provision of the wiretapping law, but speaks to entrapment and violation of due process.

What is interesting is Harrell is claiming a violation of her privacy rights as a complainant. I’m sure there are microphones and cameras in her courtroom, as with most courtrooms, so what part of her privacy was violated by Mr. Allison? I spoke with Mr. Allison, and the details of his experience are quite amazing. It seems as though the charges facing him are retaliatory and contrived, if not meeting the definition of entrapment.

Quoting from Illinois Practice Series, Illinois Civil Trial Procedure by Michael J. Kaufman, Professor Of Law, Loyola University Chicago School Of Law. Part VI. Evidence § 22:11. Recorded conversations:

The Illinois Eavesdropping Statute expressly prohibits the recording of a conversation absent consent of “all parties” to the conversation.(1) Material obtained in violation of this statute is not admissible at trial.(2)Notwithstanding the plain language of this statute, the Illinois courts, somewhat inexplicably, have interpreted the statute to prohibit eavesdropping only where no party to the conversation consents.(3) So long as one party to a conversation consents to recording that conversation, the recording is not violative of the statute. Hence, a party who secretly records its conversations with a potential adversary without that adversary’s consent does not violate the statute. The secret recording presumably would be admissible into evidence.
(1) 720 ILCS 5/14-2.
(2) 720 ILCS 5/14-2.
See also Graham, Cleary and Graham’s Handbook of Illinois Evidence at 264 (8th ed. 2006).
(3) See, e.g., People v. Richardson, 60 Ill. 2d 189, 328 N.E.2d 260 (1975). No eavesdropping was found when an informant consented to having his telephone conversation with the defendant recorded by the State’s Attorney’s office.

Is it not interesting how the courts have, “somewhat inexplicably” held that recordings where only one party was taping or had consented did not violate the statute? Knowing this, and the prosecutors do, they still insist on pursuing charges against selected targets vindictively; more likely than not out of retaliation or intimidation for their audacity in confronting government.

Another interesting case is:

183 Ill.App3d 562 539 N.E.2d 234 131 Ill.Dec 881
David A. BENDER, Plaintiff-Appellant,
v.
The BOARD OF FIRE AND POLICE COMMISSIONERS OF the VILLAGE OF DOLTON, Illinois, Commissioner/Chairman Joseph Chantigney, Commissioner/Secretary Sam Ingala, Commissioner Robert F. Byrnes, and Commissioner William Hespel, and George Pfotenhauer, Chief of Police of the Village of Dolton, Illinois, Defendants-Appellees.
In this case, a police officer brought a complaint for judicial review of the final administrative decision of the board of fire and police commissioners to discharge him from his position. The Circuit Court, Cook County, George M. Marovich, J., affirmed, and police officer appealed. The Appellate Court, Freeman, P.J., held that police officer’s use of a pocket recorder to record a conver-sation he had with the chief of police was not eaves-dropping.

On March 3, 1986, plaintiff, who was on duty, had a conversation with the Dolton Chief of Police, George Pfotenhauer, in the latter’s office at the Dolton police station. At that time, Pfotenhauer asked plaintiff some questions regarding his overtime and his ownership or operation of a security company. During their con-versation, a cassette tape recorder which plaintiff had in his vest pocket made a beeping sound. According to Pfotenhauer, he then asked plaintiff whether he was recording their conversation. Plaintiff admitted he was and Pfotenhauer demanded that plaintiff surrender the tape. Plaintiff contended at the administrative hearing that he had not recorded his conversation with Pfotenhauer. However, on appeal, he does not dispute that he did so or that he refused Pfotenhauer’s order to surrender the tape.

Quoting from the decision:

On appeal, plaintiff contends that, assuming that he did record the conversation with Pfotenhauer, such conduct did not constitute eavesdropping as a matter of law. In support, he cites People v. Klingenberg (1975), 34 Ill.App.3d 705, 339 N.E.2d 456. Klingenberg held that the videotaping of an interrogation after a drunk driving arrest did not violate the eavesdropping statute despite the fact that the defendant did not consent to it. The court reasoned that, since the defendant made his statements directly to the police and intended that they hear his statements, he had no expectation of privacy therein, there was no interception of a private communication, and the recording was not intended to obtain otherwise inaccessible information. Klingenberg, 34 Ill.App.3d at 708, 339 N.E.2d 456.

Plaintiff relies on Klingenberg to argue that defendant’s decision was against the manifest weight of the evidence. However, we find that, if applicable here, Klingenberg requires a conclusion that defendant’s deci-sion was contrary to the law.

Defendant does not directly respond to plaintiff’s reliance on Klingenberg. Indirectly doing so, it argues that, assuming plaintiff did not commit the offense of eavesdropping, there is, nonetheless, a reasonable expectation of privacy in a superior’s conversation with an employee that prohibits the repetition of their communications. This is especially true, defendant argues, in law enforcement, where confidential 565 matters are routinely discussed and expected to remain undisclosed. Given that they occurred in the office of the chief of police while plaintiff was on duty, defendant concludes, there must be an expectation of privacy accorded the communications between plaintiff and Pfotenhauer.

We find defendant’s attempt to distinguish Klingen-berg unavailing. Because we conclude that Klingen-berg controls this case, we need not address whether Beardsley is retroactively applicable to it.

Defendant’s defense of plaintiff’s discharge on the ground that, even assuming he did not commit eavesdropping, he nonetheless violated Pfotenhauer’s reasonable expectation of privacy in their conversa-tion is flawed for several reasons.

The first is that, if plaintiff did not commit eaves-dropping, he did not violate any criminal law of the State of Illinois. If he did not violate any criminal law, he did not violate article 4, section 2.1 of the rules and regulations of the Dolton police department. If he did not violate that provision, there was no basis for charging a violation of article 4, section 2.2. thereof. Therefore, he should not have been discharged.

The second reason defendant’s argument is flawed is that plaintiff was charged with committing the criminal offense of eavesdropping and not merely with violating or breaching a superior’s reasonable expectation of privacy in confidential communications.

The third reason the argument is flawed is that, while conceding that plaintiff did not commit eavesdrop-ping, it asserts that he committed what is the basis of that offense, i.e., a breach of privacy. The generally accepted definition of eavesdropping is “ ‘to listen secretly to what is said in private.’ ” ( People v. Klingenberg (1975), 34 Ill.App.3d 705, 707-08, 339 N.E.2d 456.) The statute prohibiting eavesdropping is thus intended to protect the privacy of the individual. ( Klingenberg, 34 Ill.App.3d at 707, 339 N.E.2d 456.) Defendant, therefore, cannot logically concede that plaintiff did not commit eavesdropping and simultaneously assert that he violated Pfotenhauer’s privacy.

On a more fundamental level, defendant’s argument evinces a misunderstanding of the privacy interest which the prohibition against eavesdropping protects. As we read the case, Klingenberg was based, at bottom, on the fact that the same individuals to whom the defendant directed his statements and by whom he intended that they be heard recorded them. Klingenberg thus stands for the general principle that no eavesdropping occurs where an individual to whom statements are made or directed records them, even without the knowledge or consent of the person making the statements, because the declarant does not intend to keep his statements private vis-a-vis that individual.

Although we have found it unnecessary to decide whether Beardsley is retroactively applicable here, Beardsley is nonetheless noteworthy because it relies on and discusses Lopez v. United States (1963), 373 U.S. 427, 83 S.Ct. 1381, 10 L.Ed.2d 462, which the Klingenberg court cited in holding that no eaves-dropping occurs absent interception of a communication intended by the declarant to be private. ( People v. Klingenberg (1975), 34 Ill.App.3d 705, 708, 339 N.E.2d 456.) Lopez involved a revenue agent’s recording of a bribery attempt with a pocket recorder. In rejecting the defendant’s fourth amendment challenge to the admissibility of the recording, the U.S. Supreme Court concluded that the government did not use the recorder to listen in on conversations it could not otherwise have heard, but only to obtain the most reliable evidence of a conversation which involved a government agent and which he was therefore fully entitled to disclose. People v. Beardsley (1986), 115 Ill.2d 47, 55-56, 503 N.E.2d 346.

Like the police officers in Klingenberg and the revenue agent in Lopez, plaintiff did not use his pocket recorder to listen in on a conversation he could not otherwise have heard. As such, he did not commit eavesdropping in recording his conversation with Pfotenhauer. It therefore follows, a fortiori, that plaintiff did not violate article 4, section 2.1 or section 2.2. of the rules and regulations of the Dolton Police Department. With regard to the latter, the only legitimate basis which Pfotenhauer could have for ordering plaintiff to surrender the tape was his alleged violation of the eavesdropping statute. As he committed no such violation, Pfotenhauer had no right to the tape.

I will quote from one more case here before elaborating more on the language and applicability of the statute itself. This case is People v. Jansen, App. 5 Dist.1990, 203 Ill. App. 3d 985; 561 N.E.2d 312; 1990 Ill. App. Again, with this case, the court relied upon the reasoning in People v. Beardsley (1985), 139 Ill. App. 3d 819, 487 N.E.2d 731. A copy of that case can be downloaded here.

“The Beardsley court held that the ‘eavesdropping statute should not prohibit the recording of a conversation by a party to that conversation or one known by the parties thereto to be present.’ ( Beardsley, 115 Ill. 2d at 56, 503 N.E.2d at 351.) The court based its holding on the fact that a party to the conversation cannot be accused of listening secretly to what is said in private or of surreptitious interception of a private conversation, because that party is competent to testify concerning the contents of the conversation, and could have taken notes or transcribed the conversation, rather than recording it. ( Beardsley, 115 Ill. 2d at 58-59, 503 N.E.2d at 352.)”

Speaking to Mr. Allison’s case, specifically, given the history of the police, judges, and prosecutors in Bridgeport, I believe Mr. Allison has an affirmative defense under 720 ILCS 5/14‑3(i) which reads:

(i) 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;

In anticipation of further criminal conduct on the part of the Judge Harrell, Mr. Allison was preparing to document violations of law. His recording would therefore not be a violation of State statute since he was anticipating criminal conduct by Judge Harrell. I have yet to see the charging information, but I believe it will not stand the tests outlined in the above cases.

Furthermore, given the plain language of the statute, it would appear that the State of Illinois is itself guilty of this offense given that the Supreme Court of Illinois is the authority for determining who and how recordings of judicial proceedings are to be done.

From the Illinois Supreme Court website here http://www.state.il.us/court/SupremeCourt/Rules/Art_I/ArtI.htm#46

Rule 46. Official Record of Court Proceedings

(a) Taking of the Record. The record of court proceedings may be taken by stenographic means or by an electronic recording system approved by the Supreme Court. All transcripts prepared as the official record of court proceedings shall be prepared pursuant to applicable supreme court rules.

(b) Security of the Record. The confidentiality of court proceedings and the retention and safekeeping of notes and electronic recordings shall be maintained consistent with standards established by the Supreme Court through its Administrative Office.

(c) Court Reporting Personnel. For purposes of this rule and other supreme court rules regarding the official record, “court reporting personnel” shall include:

(1) court reporters as defined by the Court Reporters Act (705 ILCS 70/1);

(2) court personnel who have fulfilled the training and certification standards promulgated by the Supreme Court and consistent with paragraph (d) of this rule; and

(3) certified shorthand reporters hired through an agency or as an independent contractor by a private party or parties to take a stenographic record in court proceedings.

(d) Electronic Recording of Court Proceedings.

(1) The Supreme Court shall provide for and prescribe the types of electronic recording equipment that may be used in the circuit courts. Those jurisdictions with electronic recording systems installed are required to properly utilize and staff such equipment in order to produce a reliable verbatim record of the proceedings.

(2) Court reporting personnel, including court reporters as defined by the Court Reporters Act (705 ILCS 70/1), must successfully complete training and certification designed to qualify them to operate electronic recording equipment, prepare transcripts from such proceedings, and certify the record on appeal. Such training and certification shall be consistent with standards established by the Supreme Court, through its Administrative Office.

(3) Electronic recordings of proceedings shall remain under the control of the court having custody of them. The chief judges shall provide for the storage and safekeeping of such recordings consistent with the standards referenced in paragraph (b) of this rule.

(4) The Administrative Office shall monitor the operation of electronic recording equipment, the security of the electronic recordings, and the training of court reporting personnel to assure that each county is in compliance with this rule.

Adopted December 13, 2005, effective immediately.

 

When compared with the language of the statute here http://www.ilga.gov/legislation/ilcs/ilcs4.asp?DocName=072000050HArt%2E+14&ActID=1876&ChapterID=53&SeqStart=30900000&SeqEnd=32700000

(720 ILCS 5/14‑4) (from Ch. 38, par. 14‑4)     Sec. 14‑4. Sentence.

(a) Eavesdropping, for a first offense, is a Class 4 felony and, for a second or subsequent offense, is a Class 3 felony.

(b) The eavesdropping of an oral conversation or an electronic communication between any law enforcement officer, State’s Attorney, Assistant State’s Attorney, the Attorney General, Assistant Attorney General, or a judge, while in the performance of his or her official duties, if not authorized by this Article or proper court order, is a Class 1 felony. (Source: P.A. 91‑357, eff. 7‑29‑99; 91‑657, eff. 1‑1‑00.)

It appears that under direction of Supreme Court Rule 46, the State is committing an offense by recording judges and State’s Attorneys in the courtroom. Remember, the language of the statute reads:

(720 ILCS 5/14‑2) (from Ch. 38, par. 14‑2)     Sec. 14‑2. Elements of the offense; affirmative defense.

(a) A person commits eavesdropping when he:

(1) Knowingly and intentionally uses an eavesdropping device for the purpose of hearing or recording all or any part of any conversation or intercepts, retains, or transcribes electronic communication unless he does so

(A) with the consent of all of the parties to such conversation or electronic communication or

(B) in accordance with Article 108A or Article 108B of the “Code of Criminal Procedure of 1963”, approved August 14, 1963, as amended;

It is an affirmative defense when:

(b) It is an affirmative defense to a charge brought under this Article relating to the interception of a privileged communication that the person charged:

1. was a law enforcement officer acting pursuant to an order of interception, entered pursuant to Section 108A‑1 or 108B‑5 of the Code of Criminal Procedure of 1963; and

2. at the time the communication was intercepted, the officer was unaware that the communication was privileged; and

3. stopped the interception within a reasonable time after discovering that the communication was privileged; and

4. did not disclose the contents of the communication.

Therefore, absent any of the preceding exceptions and affirmative defenses, it is illegal to record court proceedings absent consent from all parties, including defendants, and even harsher penalties are imposed when recording judges and State’s Attorneys. Maybe it would be wise for someone to apply for injunctive relief from the courts for their not consenting to being recorded in court. The statute makes an allowance for this:

(720 ILCS 5/14‑6) (from Ch. 38, par. 14‑6)     Sec. 14‑6. Civil remedies to injured parties. (1) Any or all parties to any conversation upon which eavesdropping is practiced contrary to this Article shall be entitled to the following remedies:

(a) To an injunction by the circuit court prohibiting further eavesdropping by the eavesdropper and by or on behalf of his principal

In the mean-time, lets move on to the Legislative debates regarding the amendment to this statute which they hoped to circumvent the Appellate Court’s holding in Beardsley.

Looking now to legislative intent. What better place to look at what the legislators who wrote the law intended than the debates on the Bill. This information came from the Illinois Legislature’s Website.

STATE OF ILLINOIS 88TH GENERAL ASSEMBLY REGULAR SESSION SENATE TRANSCRIPT 57th Legislative Day May 21, 1993

PRESIDING OFFICER: (SENATOR WATSON)
House Bill 1787. Senator Barkhausen. Read the bill, Madam Secretary.

ACTING SECRETARY HAWKER:
House Bill 1787.
(Secretary reads title of bill)
3rd Reading of the bill.

PRESIDING OFFICER: (SENATOR WATSON)
Senator Barkhausen.

SENATOR BARKHAUSEN;
Thank you, Mr. President. House Bill 1787 does two things. First, it restores the requirement that all parties consent to a — to a recording of conversations, which requirement was negated
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by the Illinois Supreme Court decision in People vs. Beardsley. Second, the bill was amended in committee to make law enforcement use of consensual eavesdropping consistent with laws that apply in forty other states and are used by the Federal Government by deleting a court order requirement in a very limited set of circumstances. The police must notify the State’s attorney of the investigation, and the recording must be necessary to protect officer safety and then only in the investigation of a felony drug offense, forcible felony or gang-related felony. The recording may not be used in any proceeding except where a party to the conversation recorded was injured or killed. Most states do not have any court order requirement on these — in these cases; so this bill is a very modest step to put Illinois in line with the practices of a number of other states – most other states. In addition, I should say the discussions are ongoing between the House sponsor and the State Police, who were the proponents of the amendment, and the bar associations and our staff, on this amended provision. A tentative agreement has been reached that will be the basis of a possible conference committee report that will move the objections that some of the bar association representatives have had to the second part of the bill. I urge your support.

PRESIDING OFFICER: (SENATOR WATSON)
Seeing no — no discussion — Senator Molaro.

SENATOR MOLARO:
Yes, thank you Mr. President, Ladies and Gentlemen of the Senate. Senator Barkhausen just touched on — said it’s going to conference committee, and I do believe that’s true, but I must just point out, they’re saying this for the safety of the officers. Well, it certainly makes sense that anytime anybody who’s working under cover or goes into a position where their life is in jeopardy or their safety is in jeopardy, well it certainly makes sense to me that the people on the outside in the cars,
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while this officer’s in the inside, should know what’s going on. That certainly makes sense. However, when I asked the question in committee — well, if all they need is to know to have the headset on and listen to these conversations so they know when it might be – a tough situation and react to it for the officer’s safety, I said that’s terrific. But why change the eavesdropping law? Why do we have to record this, and why can we then use it as evidence in — in a — in an upcoming trial if there is one? And they said, “Well, because we do.” Well, that’s why we have the objections. Safety is one thing; taking away the Fourth Amendment is another thing. And I think it’s dangerous, in the interests of safety and law and order, that every time there’s a bill like this, we want to be tough on crime, that we just blindly vote Yes, and we’re picking away and chopping away at the Fourth Amendment. And I — and I think it’s dangerous. Thank you.

PRESIDING OFFICER: (SENATOR WATSON)
Seeing no further discussion, Senator Barkhausen, to close. I beg your pardon. Senator Hall.

SENATOR HALL:
Will the sponsor yield for a question?

PRESIDING OFFICER: (SENATOR WATSON)
The sponsor will yield, Senator Hall.

SENATOR HALL:
Why is the Cook County Public Defender opposed to this? PRESIDING OFFICER: (SENATOR WATSON)
Senator Barkhausen.

SENATOR BARKHAUSEN:
Not having been a party to conversations with the Public Defender, I — I’m not sure, Senator Hall. They have been historically, philosophically opposed to most anything that had to do with eavesdropping.

PRESIDING OFFICER: (SENATOR WATSON)
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Senator Hall.

SENATOR HALL:
According to my notes it says the ISBA, the Cook County Public Defenders, say they believe the tapes should not be admissible at a trial. Are these tapes going to be admissible at a trial?

PRESIDING OFFICER: (SENATOR WATSON)
Senator Barkhausen.

SENATOR BARKHAUSEN:
Yeah. The — the — I’m told that the Public Defender has been involved in — in some of these discussions, and has been participating on efforts to arrive at a compromise that will be embodied in the conference committee report that we anticipate.

PRESIDING OFFICER: (SENATOR WATSON)
Further discussion? Senator Fawell.

SENATOR FAWELL:
Thank you — thank you very much. Now, I understand what the sponsor is trying to do. Obviously, he’s trying to be very tough on — on — on drugs and — and all this kind of business. But I’m going to tell you, I’ve — I’ve had some acquaintance with some small town policemen who, frankly, go a little overboard sometimes when they start looking at the rights of citizens versus trying to find big drug — big operations, especially in these small towns. I’ve known of — of small town police that have taken hatchets and — and broken down doors, in — in one of my towns, in the middle of the night, and unfortunately, they had the wrong house. I know of another case where they tried to confiscate a — a plane in DuPage Airport, and they had the wrong plane. They almost killed the pilot in the process of trying to stop the plane from — who was in the process of taking off and landing and trying to become a — a pilot. You know, I just think sometimes we’re just going too darn far with some of these things. I think the speaker on the other side has a — has a good point.
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You know, we have a — a Constitution and a Bill of Rights for a reason. I think this bill goes way too far, and we ought to stop and think what we’re doing.

PRESIDING OFFICER: (SENATOR WATSON)
Further discussion? Senator Dudycz.

SENATOR DUDYCZ:
Well, thank you — thank you, Mr. President. I’d just like to share a few facts with Illinois’ consensual electronic surveillance legislation, where currently the Illinois court order requirement for consensual electronic surveillance endangers police officers. It impairs investigations of — of gangs, of drug trafficking and other crimes, and it also unnecessarily overburdens prosecutors in the court system. Illinois, of all the fifty states, is the most restrictive in the whole United States of America in respect to consensual electronic surveillance. There are over forty states in the federal — and the Federal Government, which allow law enforcement to utilize consensual electronic surveillance as an investigative tool without a court order, not “with”, but “without” a court order. Of the remaining states, the restrictions placed upon law enforcement are limited. And none of them, of the remaining states, are as restrictive or as severe as what we have in Illinois. A few more facts, Ladies and Gentlemen. Police must make…

PRESIDING OFFICER: (SENATOR WATSON)
Could we have some order, please? Thank you.

SENATOR DUDYCZ:
Police must make application to a court showing probable cause for a felony. Well, in — in Illinois, also, for your information, should the application made by the police officers would be denied, the police officer must notify the suspect in writing within ninety days that an attempt was made – not that it
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was completed, but an attempt was made – to obtain an order. Also, it compromises the investigation of the law enforcement community and possibly the safety of the undercover officers that are out there protecting us. And in Illinois, police are limited to ten days in which to conduct a court-authorized consensual surveillance, and once the surveillance has been conducted, in Illinois, the police are required to notify the suspect within ninety days. I — I disagree with Senator Fawell. This is — this bill is not going too far. Some would say that this — bill does not go far enough, but I would say, it’s a good — a good bill to begin with, and I would seek the affirmative support of everybody in the Senate.

PRESIDING OFFICER: (SENATOR WATSON)
Further discussion? Senator Berman. Senator Berman.

SENATOR BERMAN:
Thank you, Mr. President. I rise in opposition of this bill. If you look at this bill, this is a blank check for any police officer or investigator to come in and wiretap your phones, your constituent phones, and they are off the hook. They can give any excuse they want. They were doing some investigation for some idea or other. When Senator — Dudycz says that Illinois is the most restrictive, he may say that in a critical way. I’m glad to hear that, in a very proud way. We have some protection for our citizens regarding eavesdropping, and 1 think that that should be a — a point of law in Illinois that we should all go home and be very proud of. Citizens that are not charged with crimes have a degree of private conduct, private conversation, that we, as lawmakers, respect. The way — best way to continue to respect that private conversations of our voters is to vote No.

PRESIDING OFFICER: (SENATOR WATSON)
No further discussion? Senator Barkhausen, to close.

SENATOR BARKHAUSEN:
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Let me say a couple of things in — in closing, Mr. President. First, I think it’s important to — to respond immediately to the comments made by the prior speaker. This bill has absolutely nothing to do with authorization to conduct wiretaps. The distinction between wiretaps and nonconsensual eavesdropping needs to be understood. Wiretapping involves overhearing a conversation between two individuals, neither of whom is a law enforcement official, and this has nothing to do with the subject of — the circumstances under which one can obtain authorization to overhear a conversation between two unrelated parties. Consensual or nonconsensual eavesdropping, on the other hand, has to do with — with recording, if you will, and under what circumstances, conversation in which one of the parties is a law enforcement official, and that’s what we’re talking about here. And what this bill in its current form would permit is — is the use of consensual eavesdropping; that is, a conversation being in which one of the — one of the members is — is a law enforcement official, to permit that to be overheard by another police officer, so that they might go to that officer’s rescue if he or she gets into trouble. Now, that conversation could be — could be recorded and a recording of that conversation could be used, as the bill is now written, only where an — an individual is either injured or killed at the time that conversation is recorded. Now, as I said, this is going back to the House. It’s anticipated that there will be a non-concurrence in the amendment for the purposes of a conference committee, in which, as I also said, there is already tentative agreement with the bar associations. Most of the individuals, as you know, from the bar association that were involved in these types of issues are criminal defense lawyers. So, if what we’re talking about here will ultimately be something that they agree to, then I submit to you that this is not at all objectionable, and it’s at least a step in the right direction,
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from the standpoint of law enforcement. I ask for your support.

PRESIDENT PHILIP:
All right. The question is, shall House Bill 1787 pass. Those in favor will signify by saying Aye. Those opposed, Nay. The voting is open. Have you all voted who wish? Have you all voted who wish? Take the record. On the question, there are 35 Ayes, 21 Nays, 2 voting Present. House Bill 1787, having received the required constitutional majority, is declared passed.

STATE OF ILLINOIS 88TH GENERAL ASSEMBLY REGULAR SESSION SENATE TRANSCRIPT 69th Legislative Day June 29, 1993

Committee Report No. 1, House Bill 1787.

Madam Secretary, do we have a file — a Conference Committee Report on House Bill 1787?

ACTING SECRETARY HAWKER:
First Conference Committee Report on House Bill 1787.

PRESIDING OFFICER: (SENATOR DUDYCZ)

Senator Barkhausen.

SENATOR BARKHAUSEN:
Thank you, Mr. President and Members. The Conference Committee Report on House Bill 1787 is fairly close to the form in which it was previously approved by the Senate. The subject of the bill is consensual eavesdropping, meaning a — a conversation in which one of the parties…

PRESIDING OFFICER: (SENATOR DUDYCZ)
Pardon me, Senator Barkhausen.

SENATOR BARKHAUSEN:
…one of the parties consents to the conversation – in this case, a law enforcement official. The bill allows this conversation to take place without court approval in order, and in those situations where it is necessary, to protect an undercover officer conducting an investigation. Furthermore, the — the bill allows a limited form of admissibility of the content of a conversation, but only in those situations where a party to the recorded conversation is killed or suffers great bodily harm, or
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for the purpose of the direct impeachment of a witness. There are, in addition, certain bookkeeping and notice requirements that would be required of those recording such conversations. The bill is a product of a compromise between the Illinois State Police, who originally brought it to us, and the Illinois State Bar Association. I should note that it puts Illinois into the mainstream of some forty-eight other states that allow consensual eavesdropping without a court order and — and with full admissibility. This, I emphasize, only allows admissibility of such recordings under very limited circumstances. I ask for your support.

PRESIDING OFFICER: (SENATOR DUDYCZ)
Any discussion? Senator Molaro.

SENATOR MOLARO:
Yes. Thank you, Mr. President, Ladies and Gentlemen of the Senate. What we have here — if you recall this bill, this is the bill where sometimes during the course of an investigation – and why this is being brought up – you would have State troopers or undercover officers being put in a position where their safety may be in jeopardy. So what they want to do is, when they go and they’re undercover, or they’re going to be at some buy or some bust and they’re going to be dealing with these gang members or drug dealers, they want to be able to have a device and eavesdrop on conversations they’re having with these drug dealers. And the reason they want the device, so the team that’s outside of this area, if something is going down that the safety of the officers is in jeopardy, they would be able to go in and supposedly save the officers. Well, that’s terrific, and that’s noble, and that’s a great idea. And it should be there. So we’re going to make an exception to the Eavesdropping Law. In Illinois right now you either have to have both parties’ consent or you need a court order. What we’re going to do is make an exception and say, since
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of course the drug dealers are never going to okay recording their conversation, we’re going to have an exception. If the police officer or undercover agent can wear the device, he does not need a court order, and he will not be guilty of the — violating the Eavesdropping Statute. And that’s terrific. But what this amendment says – and it goes a little further – and what it says is that any recording derived as a result of this exception — now, they’re not only going to wear it so the police officers outside can hear it; they’re going to record it now. And it says any recording derived as a result of this exception shall be inadmissible in any proceeding, except where a party present during such recording is injured or killed. Now, if you’re going to make an exception, and you’re going to allow the recording to be used as evidence – and I don’t see why we’re going to use this recording as evidence if we’re only allowing the eavesdropping for the safety of officers – why we’re now going to make it admissible if the party’s injured. In other words, if you’re going to have a right of privacy and you’re going to have a Fourth Amendment, either you’re going to need a court order or you don’t. You can’t say we’re going to make it admissible because someone got hurt. There’s no correlation. There’s no logic to it. It doesn’t make any sense. Either it’s admissible or it’s not. Either we’re going to violate the Fourth Amendment or we’re not. Either we’re going to chip away at it or not. To come up and say that it’s not admissible unless someone gets hurt – there’s no logic to it. What I think we’re having is, we’re going to have an end run to chip away at the Fourth Amendment and say it’s officer safety issue. The officer can wear the device. He can have his men outside. There is no reason to record it, and there is no reason whatsoever to make it admissible. Thank you.

PRESIDING OFFICER: (SENATOR DUDYCZ)
Any further discussion? Senator Palmer.
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SENATOR PALMER:
Thank you, Mr. President. I want to follow up on Senator Molaro’s line of thinking. As I read my analysis, there are some other disturbing factors in here. And correct me if I’m wrong, Senator Barkhausen, but as I read this, it says that the Director of the Department of State Police shall issue regulations. And I would wonder: Is that the only check that we have on what I consider coming close to the wind on violating the Fourth Amendment? Secondly, it says “any private oral communication”. Does that mean that if someone is in a room with a suspected person and unwittingly is part of a conversation, that that innocent bystander’s conversation also becomes part of this record? And finally, again, this question of officer safety. If that is the only purpose of this bill, why will this written record of the interception or the recording be kept for ten years, and who is the custodian of that tape for those ten years, and does the person who has been recorded know that such information has been kept for ten years?

PRESIDING OFFICER: (SENATOR DUDYCZ)
Senator Barkhausen.

SENATOR BARKHAUSEN:
Senator — Senator Palmer, it’s — it’s been pointed out to me that the — that the regulations are basically consistent with current law and practice, and furthermore, at — really at the behest of those negotiating on behalf of the State Bar Association, the — the bill, in its current form now, requires the bookkeeping and notice requirements that are similar to nonconsensual eavesdropping, so that defendants can determine if proper procedures are being followed.

PRESIDING OFFICER: (SENATOR DUDYCZ)
Senator Palmer.

SENATOR PALMER:
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Thank you. I suggest, though, that that is after the fact – what’s done with the tape. That does not answer the question ahead of time: that we are sailing very close to the wind, as far as I’m concerned, in a Fourth Amendment right of not being recorded in such a way. I think- this is a very, very dangerous precedent to set.

PRESIDING OFFICER: (SENATOR DUDYCZ)
Further discussion? Senator Hendon.

SENATOR HENDON:
Thank you, Mr. Chairman. Will the sponsor yield?

PRESIDING OFFICER: (SENATOR DUDYCZ)
Sponsor indicates he will yield. Senator Hendon.

SENATOR HENDON:
Senator Barkhausen, I see — I have just a few questions. It says here that the recordings will only be done if a officer’s life is in jeopardy. Isn’t an officer’s life always in jeopardy out there on the streets?

PRESIDING OFFICER: (SENATOR DUDYCZ)
Senator Barkhausen.

SENATOR BARKHAUSEN:
This only applies to drug investigations and forcible felonies.

PRESIDING OFFICER: (SENATOR DUDYCZ)
Senator Hendon.

SENATOR HENDON:
Can — will you name the — the long list of enforcible <sic> felonies for this Body?

PRESIDING OFFICER: (SENATOR DUDYCZ)
Senator Barkhausen.

SENATOR BARKHAtJSEN:
We can probably, if you’re interested, give you a cite to -Section of Chapter 38 defining the forcible felonies.
Page 27

PRESIDING OFFICER: (SENATOR DUDYCZ)
Senator Hendon.

SENATOR HENDON:
My question is, Senator: How many felonies fall into that category? And — and the reason why is we need to know — everyone in this Chamber needs to know how wide-ranging this use of recording devices. And I’m all for protecting police officers’ lives, but I saw — I read in the paper just the other day where another officer was killed stopping someone for a traffic violation. So a officer’s life is always in jeopardy. So we need to know exactly how far-reaching this clear violation, in my opinion, of the Fourth Amendment actually is.

PRESIDING OFFICER: (SENATOR DUDYCZ)
Senator Barkhausen.

SENATOR BARKHAUSEN:
Investigation of a traffic violation would not be one of them. There are twelve that are enumerated, and then it — the ones you would pretty well assume are included, obviously including murder, kidnapping and the like, and then there’s sort of a catchall phrase at the end: resulting in great bodily harm or permanent disability or disfigurement.

PRESIDING OFFICER: (SENATOR DUDYCZ)
Senator Hendon.

SENATOR HENDON:
Thank you, Mr. Chairman. I have in front of me Section 5-28 <sic> (5/2-8) and describes forcible felony: treason, first degree murder, second degree murder, aggravated criminal sexual assault, criminal sexual assault, robbery, burglary, arson, kidnapping, aggravated battery resulting in great bodily harm or permanent disability, and on and on and on and on and on. So it’s practically everything, including burglary and any — any old thing. And I’m just saying that this is far — far too
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outreaching here. And my other question: Why in the world would the records be held for ten years if it was simply there to protect the officer? That officer may be retired and came to the State Senate in ten years.

PRESIDING OFFICER: (SENATOR DUDYCZ)

Senator Barkhausen.

SENATOR BARKHAUSEN:
Mr. President, I’m glad to try to answer these questions. I mean, bottom line: If people are more interested in the — in the rights of criminal defendants than they are in police officers investigating dangerous felonies, don’t vote for the bill. I mean, the bill is supported by the State Bar Association, which, in my experience, after thirteen years as a Member of the Judiciary Committee watching representatives of the bar associations come in and — and continually take position on behalf of criminal defendants and against the positions of prosecutors in this State, the fact that they are for this bill ought to tell us something.

PRESIDING OFFICER: (SENATOR DUDYCZ)
Senator Hendon.

SENATOR HENDON:
I — I am personally offended by that, but I — I’m not going to let it bother me, because worse things have been said about me on this Floor. But I think that it is — it is a shame for you to stand there, Senator, and try to imply that people who are concerned about innocent people, who are simple bystanders who may simply be talking to someone that they didn’t even know was a drug dealer, or a burglar, or an arsonist or whatever, that they’re concerned about — about the criminal. We’re concerned about the innocent bystander. You, Senator, could be out there tomorrow. The Gentleman standing next to you — you don’t know what he does in his off-hours. You simply do not know. So anybody can be
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standing next to somebody in an innocent conversation and that person is under investigation for whatever reason – and I named the entire list here. And it is wrong for you to stand there and imply that those of us who are against this intrusion that — and against people that are innocently recorded and kept for ten years, that we are supporting criminals and against the police. I just want you to know, sir, that I happened to pass a — a lot of law-and-order legislation in the City Council, and have some here in this Chamber that were buried by the — the various chairmen of those committees, or Judiciary. So I am offended by your implication, sir. And what you need to look at is what happens to the innocent bystanders who have absolutely nothing to do with that particular criminal investigation. And I’d like for you to address that. What happens to the innocent people? It says here that the judge “may” – may – give them notification and “may” give them a copy of the tape, when it should say that the judge “shall” give any innocent bystander a copy of whatever was recorded to
them. Why doesn’t it say that the judge “shall” give them that information?

PRESIDING OFFICER: (SENATOR DUDYCZ)
…(microphone cutoff).. .assume that’s a rhetorical question, Senator Hendon. It’s a question. Senator Barkhausen. SENATOR BARKHAUSEN:
Let me, if I may — I know Senator Hawkinson has been waiting to speak. Maybe — I think his remarks will address answers to your question and some other points as well.

PRESIDING OFFICER: (SENATOR DUDYCZ)
Senator Hawkinson, to answer senator sermon’s question. Senator Hendon.

SENATOR HENDON:
Thank — thank you, Mr. Chairman, and I certainly have a great deal of respect for my aisle mate here, but I did not ask Senator
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Hawkinson the question; I asked the question to Senator Barkhausen – and it is his bill – and I want to know what is his opinion of why innocent people do not get a copy of the tape recording that they don’t even know exists of — of their conversation. They may not — that tape may allow them to know for the first time that that person is a criminal. Why can’t they get the copy of the tape?

PRESIDING OFFICER: (SENATOR DUDYCZ)
Senator Barkhausen.

SENATOR BAREHAUSEN:
Section 14-3B provides that notice of interception or recording is — is given to the individual not later than a hundred and twenty days after the termination of interception or recording or immediately upon the initiation of criminal recedings — proceedings. So, you know, there is notice.

PRESIDING OFFICER: (SENATOR DUDYCZ)
Further discussion? Senator Hendon.

SENATOR HENDON:
And — and, Mr. Chairman, I’m trying to be brief, but — but the sponsor is kind of skating around the issue here. Section (f) <sic> (b) says that a court “may in its discretion” – may – m-a-y – at its discretion – “make available to those persons or their attorneys for inspection those portions of the intercepted communications…” It says “may”. It does not say “shall”. And it says at the court’s discretion. I’m simply asking, why doesn’t it say that the court “shall” give those innocent people copies of that communication?

PRESIDING OFFICER: (SENATOR DUDYCZ)
Further discussion? Senator Hawkinson.

SENATOR HAWKINSON:
Thank you, Mr. President. Just a couple of points. I rise in support of the Conference Committee to House Bill 1787 for several
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reasons. One — one is a reason that, if I’ve listened carefully, has not been mentioned yet. There’s another important aspect to this bill, other than the one that’s been discussed. In Illinois, we have one of the strongest Eavesdropping Statutes in the nation. It goes far beyond the requirements of the Fourth Amendment to the Constitution or the Illinois Constitution, and that Eavesdropping Statute has made it an offense and prohibited one citizen from recording another citizen over the telephone, or otherwise, unless there’s consent of both parties. That goes far beyond what the Fourth Amendment requires, and that applies to all of us. A few years back the Illinois Supreme Court, in a — in a decision – the Beardsley decision – essentially overturned our own Statute and -and authorized citizens to start taping each other. This bill will revert that law back to what we intended it with our Eavesdropping Statute, so that citizens — private citizens will not be able to tape each other without consent. And that’s an extremely important part of this bill. It’s something that Senator Cullerton had in another piece of legislation. And this will make our law consistent again, and actually is more protective of our rights of privacy than is the current state of the law in Illinois. Secondly, on the part of the bill that has had the discussion so far: Arguably, the Beardsley decision would allow law enforcement to tape any conversation – not just those enumerated in this bill. This bill does not violate the Fourth Amendment. And I — I rose initially to indicate that we’re really not talking about implicating any change in the Fourth Amendment. Obviously, we’re not able to do that. The federal government currently allows wiretapping on all federal offenses in this manner, and clearly, the original bill, which we passed out of here, would allow a far broader wiretapping than this bill does. The Bar Association had objections to that. They have negotiated this out, and this bill is really a far more limited
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use and — and — occurs in only two cases: one, where someone is actually recorded and then gets on the witness stand and lies, and you can use that recording as direct impeachment; the other exception is the great bodily harm – the bodily harm exception. And I understand that was part of the — the compromise suggested by the Bar Association. There’s a legitimate public policy argument, as suggested by Senator Molaro’s remarks, over whether we ought to do that in great bodily harm or not, but I don’t think that the Fourth Amendment is implicated. And I would urge your approval of the Conference Committee Report to 1787.

PRESIDING OFFICER: (SENATOR DUDYCZ)
Senator Barkhausen, to close.

SENATOR BARKHAUSEN:
Thank you, Mr. President. Let me — let me start by — by offering an apology, if — if any of my remarks were taken as a — as a personal offense. I — I am just simply puzzled that Illinois has been so behind the times in moving in the direction of criminal law enforcement policy that the federal government and more than forty other states have already taken, and we’re moving, you know, ever so slightly in the same direction by passing this bill, if we do. And — and that was the reason for my remarks, and I again urge your support.

PRESIDING OFFICER: (SENATOR DUDYCZ)
The question is, shall the Senate adopt Conference Committee Report No. 1 on House Bill 1787. Those in favor will vote Aye. Opposed, vote Nay. And the voting is open. Have all voted who wish? Have all voted who wish? Have all voted who wish? Take the record. On that question, the Ayes are 40, the Nays are 14, 4 voting Present. The Senate does adopt Conference Committee Report No. 1 on House Bill 1787, and the bill, having received the required constitutional majority, is declared passed.
Page 33

STATE OF ILLINOIS 88th GENERAL ASSEMBLY HOUSE OF REPRESENTATIVES TRANSCRIPTION DEBATE 75th Legislative Day June 30, 1993

Daniels: “Thank you Mr. Speaker, Ladies and Gentlemen of the House. Just to acknowledge that our most distinguished Governor of the State of Illinois, Jim Edgar is with us this morning.., this evening.
Steczo: “The Chair would like you to welcome the Honorable 3overnor to the chamber this evening. On Supplemental Calendar #1, appears House Bill 1787, under the Order of Conference Committee Reports. The Chair recognizes the Gentlemen from Cook, Representative Dart.”

Dart: “Thank you Mr. Speaker and Members of the House. House Bill 1787 is the result of the discussions and compromises made by the Department of State Police and the Illinois State Bar Association. It does two things, one of which is a clarification to straighten out the law in regards to consensual overhears.. The second part of it deals with consensual overhears for police officers’ safety, with numerous provisions in there to safeguard it. I would be happy to answer any questions.”

Speaker Steczo: “The Gentleman has moved for the adoption of the First Conference Committee Report on House Bill 1787. On that question, is there any discussion? The Chair
recognizes the Gentleman from Will, Representative Wennlund.”

Wennlund: “Thank you Mr. Speaker, Ladies and Gentlemen of the House. I rise in support of the Bill. What this does, and it’s strongly supported by the Illinois State Police, what
Page 24

it does is, it gives officers some method of protection against walking up to that car at night, or getting involved in a drug bust and…so that other state police can monitor that officer and watch out of his safety and
rescue him in the event he meets some undue force. It’s something that will help state police and other police agencies fight the war on drugs, and I urge your support.”

Speaker Steczo: “The Chair recognizes the Gentleman from Fulton, Representative Homer.”

Homer: “Will the Gentleman yield?”

Speaker Steczo: “He indicates that he will.”

Homer: “Representative Dart, would you advise us to the current status of the Illinois State Bar Association?”

Dart: “This was the result of working with them for a extended period, and I believe they’re at least neutral. They may be in support of it, that…I’m not willing to say they’re in support of it, but I know they’re at least neutral on it. A lot of this language is theirs.”

Homer: “Did the provision go into this report that was being requested by them to close the disparity in interpretation between statutory and common law with respect to one party consent? Did their language go in the Bill?”

Dart: “Yeah. That’s the one in answer to the Beardsley case. It was specifically drafted by them to try to clarify that so there is no more confusion on that.”

Homer: “Thank you.”

Speaker Steczo: “The question is, ‘Shall the House adopt the First…the Chair recognizes the Lady from Cook, Representative Davis.”

Davis: “Will the Gentleman yield?”

Speaker Steczo: “He indicates that he will.”

Davis: “Representative, this is really an eavesdropping Bill, is
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that correct?”

Dart: “No, what the Bill does, is it clarifies what we already presently have in law in regards to consensual overhears right now. There was a court which.. ,well, I say misinterpreted the statute which basically allowed for an individual to tape record another person’s conversation without any protections whatsoever. That’s the first provision of this. What this Bill does is says that you cannot do that, that is not something we will allow to occur, that’s the first provision. The second one says in these limited instances where a police officers safety is involved, that they can get through going through an elaborate procedure with the States Attorneys office and record keeping and notice provisions, they can get..be allowed to wear wire when they are in like drug purchases and the like.”

Davis: “So, let me be sure I understand you now. You’re saying the first provision is; that before a person can eavesdrop or record your conversation, you must be notified and give consent.”

Dart: “Exactly. What had.. .that’s how the law actually reads, but a court misinterpreted it as far as I.. .my view is. They interpreted it so that they said that only one party has to know its going on, and the court.. .they said that the other person had to actively demonstrate they have an expectation of privacy before it’s prohibited. So, this clarifies it and says that you have to tell the other person before you can do this.”

Davis: “Okay, now let me ask you this. On, I guess the other page here, it says ‘provides that any recording or evidence derived as a result of the exemption is inadmissible, unless the jury or impeachment exception implies.’Wanna
Page 26

explain that section?”

Dart: “What this is says, is that the information that is obtained cannot be used against the defendant unless the police officer is killed or great bodily injury so that he’s paralyzed or something he can’t come to court, those are the only times that any type of hearing could be used. The defense attorney, on the other hand, could use it if the defendant’s saying that the police officer took the dope and threw it at em, and the police officer is saying no I didn’t, I bought it off him, the defense attorney could use that information to impeach the police officers testimony.”

Davis: “Okay. What about #5; ‘requires notice to the person who was the subject of the interception or recording within a reasonable time.’”

Dart: “With.. .no more than 120 days. Present statute…” Davis: “But, this is after the fact.”

Dart: “It mirrors the present existing statute in regards to this.”

Davis: “Representative, does this take away existing freedoms from people? I don’t mean the protection of criminals, but I mean, are we taking away the freedoms that some people have who could be innocent, but because of this particular law they could go through an awful lot of difficulty?”

Dart: “No, because matter of fact the way the law is written, in particular it says that the States Attorney would not be able to use any of those tape recording devices anyway, so it’s not as if that’s gonna harm anybody. That …… be used. The States Attorney can’t walk in there with a tape and say I got you on tape. The only way that tape could ever be used is if the police officer who was.., in the narcotics transaction was shot and killed for instance.”
Page 27

Davis: “Let me say this, you know we could talk about narcotics transactions and all we want. I’m gonna be honest, I’m not interested in that.”

Dart: “That’s what the Bill goes for.”

Davis: “I’m really not interested.”.

Dart: “That’s what the Bill is directed towards though.”

Davis: “I’m gonna have to to give ya a ‘present’ vote on this, and I’ll tell you why Representative Dart, I hesitate, and I refuse, really, to vote on any more legislation that takes the freedoms of people, like having a private conversation. You get yourself involved in a situation where policeman want to harm you, and you’re innocent, and they tape part of a conversation, or they change what’s been said, and you could be irreparably harmed. I don’t think we do our citizens in Illinois justice and we could throw up that red flag of narcotics, but it just doesn’t wash. This is not the kind of legislation that’s going to rid this state or this country of drugs and the transporting of drugs. This, in my opinion, is just another removal of a constitutional freedom that we all seek and want, and that’s to have free conversation with somebody without feeling you’re being taped.”

Speaker Steczo: “Is there any further discussion? The Chair recognizes the Gentleman from Champaign, Representative Johnson.”

Johnson, Tim: “I think we always get to the end of these Sessions, and then a Bill that might not otherwise have a chance of passing, because it’s so flz. ;ets to us in this form, and then we’re more inclined to support it.
Everybody ought to oppose this Bill. This Bill is an attempt to get one more element of the camels nose under the tent with respect to eavesdropping. What makes this
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country unique, makes Illinois unique, as a part of the United States is certain elements of civil liberties that we’ve come to accept, that really are unique in the world, and one of them is the ability to be free from efforts of government to intrude in one’s privacy. I can debate the merits of this Bill in detail all day, but the bottom line is that everybody in Illinois is subject to having their privacy interfered with and their concept of fundamental rights damaged by the passage of this Bill. This is one more attempt, most of which have been beaten off before by a bipartisan coalition of people who still think that the Bill of Rights means something. But, one more attempt to try to chip away in the fake name, phony name of law enforcement at our basic civil liberties. This is a bad, bad Bill. It’s a bad precedent. I didn’t sign the Conference Committee Report for precisely that reason, and the Bill oughta be defeated.”

Speaker Steczo: “The Chair recognizes the Gentleman from DuPage, Representative Roskam.”

Roskam: “Thank you, Mr. Speaker, Ladies and Gentlemen of the House. With all due respect to the previous Speaker, my good friend, I respectfully disagree; and I did sign that Conference Committee Report. In my opinion, this is an opportunity for us to empower the men and women who are on the front lines of the fight against crime in their efforts to go undercover and what not. This evidence cannot be used against a defendant unless a police officer ends up dead in the line of duty, …… it’s used for impeachment. So, in my view, this is an opportunity for us to give the men and women on the front lines the tools to defend themselves, and I would urge an ‘aye’ vote.”

Speaker Steczo: “Representative Dart, to close.”
Page 29

Dart; “Thank you, Mr. Speaker. Just to clarify the record on this. This is a very limited procedure we’re talking about here. The one concept is actually going to try to protect more people’s rights because of a court interpretation. Presently, under the way these courts have interpreted the law, a constituent can contact you on the telephone, put a tape recorder on you, and unless you actively state to your constituent, ‘I do not wish to have this recorded’, they can do it and avoid the eavesdropping law. This closes that loophole in that. The second provision is in response to officers who were shot. There was an officer shot in DuPage county, it’s a very dangerous thing. The world has changed a great deal, and this is unique, it is not unique. There are 42 other states that have similar provisions to this. There’s numerous safeguards in here. This is not evidence we’re talking either. we talking the only time this tape recording could ever be used is if the police officer is shot. If he’s shot at the door, or if there’s great bodily injury to him, and even in that instance, it’s very limited. The safeguards are numerous in there. We’re trying to bring Illinois in.. .up to snuff with the other states in the union right now, and it’s purely a question of protecting the police officers, who on a daily basis, we put in jeopardy of their own lives. This is a very important measure. We are not intruding further on citizen’s rights, and I would urge your support.”

Speaker Steczo: “The question is, ‘Shall the House adopt the First Conference Committee on House Bill 1787. All those in favor will signify by voting ‘aye; those opposed by voting ‘no’. The voting is open. Have all voted who wish? Have all voted who wish? Have all voted who wish?

Mr. Clerk, please take the record. On this question, there
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are 82 voting ‘yes’, 31 voting ‘no’, 2 voting ‘present’, and the House does adopt the First Conference report on House BIll 1787, and this Bill having received the required Constitutional Majority, is hereby declared passed.

STATE OF ILLINOIS 90TH GENERAL ASSEMBLY HOUSE OF REPRESENTATIVESTRANSCRIPTION DEBATE 107th Legislative Day April 1, 1998

Speaker Hartke: “Discussion on the Bill. This Bill is on Short Debate. The Chair recognizes the Gentleman from Kendall, Representative Cross.”

Cross: “I’m joined by all my colleagues with their hands up taking this off Short Debate. Thank you, Mr. Speaker.” Speaker Hartke: “I didn’t see the…

Cross: “… now see.”

Speaker Hartke: “Yes, I do.”

Cross: “Will the Sponsor yield?”

Speaker Hartke: “Indicates he will.”

Cross: “Representative, any opposition to this Bill?”

Fritchey: “No, Sir.”

Cross: “Even with both Amendments?”

Fritchey: “None that I’m aware of.”

Cross: “I’m a little.., not puzzled, but could you explain to us again? Go over the eavesdropping section. We couldn’t hear anything you said about it.”

Fritchey: “There’s actually a few items with respect to eavesdropping. With respect to an eavesdropping device, it now will define a eavesdropping device as something that can intercept or record conversations over pagers and fax machines, as well as telephonic electronic media. With respect to, who was exempted from law enforcement,it now exempts law enforcement officers from listening to conversations that do not qualify as private oral communications. And what specifically does not qualify as a private oral communication anymore are communications that take place on stolen cellular service. So, for example, if an individual has a conversation on a stolen cellular phone, or a cloned phone, he no longer has an expectation of privacy on a conversation that takes place
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on that stolen cellular phone.”

Cross: “John, it’s kind of tough to hear you. Is this an ongoing problem in Cook County?”

Fritchey: “What this is, it’s trying to do a few things. It’s trying to modernize and bring up to date some of the eavesdropping law.., eavesdropping laws and private communication laws by stating when there is an expectation of privacy and when there isn’t. The other provisions in there are to give a tool to law enforcement. What’s happened now, through technology, is offenders are kind of a step ahead of law enforcement right now. They can clone a cellular phone and still be able to evade detection on that, because up until now, we cannot use electronic surveillance on that cellular phone because they have an expectation of privacy. This Bill’s aimed at taking that expectation of privacy away. It additionally now includes pagers and fax machines as items that can be eavesdropped upon. So, now we can go for enforcement of that, and as I said, what’s happened is, you have individuals that are cloning pagers to find out which informants are calling police officers. So, the short answer to your question is, yes, it’s an ongoing problem, which is why the State’s Attorney came up with this package.”
Cross: “Now, are we reading this correctly that the violation here, under the eavesdropping section, is a Class I Felony?”

Fritchey: “Violation of the eavesdropping is a Class IV, subsequent offenses is a Class III. If the… If the violation involves eavesdropping on a police officer, a state’s attorney, an attorney general, a judge, or a Legislator while in the performance of their official duties, then it’s a Class I, and that again is to protect
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any of these individuals from interference with their official duties.”

Cross: “Why… I mean, I can understand the state’s attorneys maybe, and I can understand police. Why on earth should it be a Class I Felony if someone overhears what we’re saying as Members of the General Assembly? Why are we a protected class?”

Fritchey: “It’s not just what we’re saying, for example, during this debate. It’s private communications. It may be a furtherance of legislative duties, discussions that we may be having with other protected Members, police officers, judges, et cetera, and that they want to accord all these classes a higher level of protection.”

Cross: “I know we talk about a lot of National Security issues, maybe that’s why we make it a Class I. I don’t have any other questions. I know Representative Durkin has some.”

More developing…. check back often.

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2 thoughts on “An Analysis of the Draconian Application of Illinois' Eavesdropping Law 720 ILCS 5/14

  1. Amorro Alfonso says:

    I’ll amazed at the bias shown by Chicago Press in reporting cases
    about Illinois Eavesdropp­ing Law. In Cook County there were three
    Eavesdropp­ing Cases: People v. Moore, People v. Drew and People v.
    Melongo. In the first case, the jury acquitted the defendant. In the
    last two cases, there are pending motions to dismiss. However, the
    Chicago Press has completely ignored the Melongo’s case and focused all
    its attention on the Drew’s case. Melongo recorded conversati­ons with
    Pamela Taylor for an allegedly altered court transcript­. Mrs. Taylor is
    a public official working at the criminal located at 2600th California
    Ave. Melongo has spent 22 months in jail for this offense, is currently
    out on house arrest, yet the local press in all of its many articles,
    has completely ignored the Melongo’s case. Why? Maybe there’s a great
    bias in the press against police to the extend that it has turned a
    blind eye on the integrity of reporting the news. If it wants to report
    news related to the Eavesdropp­ing Law, then by all means, it should
    report ALL of it; I’m extremely shocked at what’s happening here.

    Melongo’s Motion to dismiss: http://www­.scribd.co­m/doc/8109­6353/Amend­ed-Motion-­To-Dismiss­-Illinois-­Eavesdropp­ing-CaseState response’s to Melongo’s motion: http://www­.scribd.co­m/doc/8175­0317/State­-Response-­Amended-Mo­tion
    Melongo’s arguments on her motion to dismiss will be heard on March 13th, 2012. The presiding judge is Goebel.That’s what mean being impartial. Tell the ENTIRE story. Not just a snippet of it.
     

  2. amorro says:

    Melongo’s Eavesdropping Case Dismissed: Another Blow To Illinois Eavesdropping Law

    Upon the defendant’s motion[1], Judge Goebel filed his written order[2] dismissing Melongo’s eavesdropping case on June 19th, 2012. The state hasn’t decided if it will appeal.
    [1] http://www.illinoiscorruption.net/documents/MotionRequestAmendedOrder.pdf
    [2] http://tinyurl.com/cqq6ahg
    Melongo’s motion : http://tinyurl.com/6nqv2se
    State’s response: http://tinyurl.com/73fwecf

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