While the NZ National Government is following its puppeteer masters and ramming through legislation to increase the power of the state to spy on and record citizens as they innocently go about their daily business, they're already planning the next step, and reducing civil and human rights - we can spy on you but you can't record what we do.
The National government has rammed a lot of legislation through as '
Omnibus Bills' and
rushed Bills through undemocratically -
allowing one day for submitters to write and present their submissions.
By Jacob Huebert:
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.
When does the person you’re talking to have a reasonable expectation
of privacy? The bill doesn’t say. And that’s not something an ordinary
person can be expected to figure out.
A law must be clear enough for citizens to know in advance whether a
particular action is a crime. This bill doesn’t meet that standard,
which should be reason enough for a court to strike it down if it
becomes law.
But lack of clarity isn’t the only problem with this bill.
Although it appears to be designed to accommodate the Illinois
Supreme Court’s ruling striking down the old law, the bill actually is
designed to continue to prevent people from recording interactions with
police.
The bill says it would only be a crime to record someone where there
is a reasonable expectation of privacy, which should mean that recording
public encounters with police would not be a crime, and the old law’s
fatal constitutional flaw would no longer exist.
But the bill doesn’t really fix the problem. Again, 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. That is not a legitimate purpose. And recent history
suggests it’s important that people not be afraid to record police
wherever they perform their duties so that officers will be more likely
to respect citizens’ rights, and officers who do respect citizens’
rights will be able to prove it.
The bill might also provide an excuse to scuttle body cameras for
police. Police may argue that using body cameras to record encounters
with citizens outside of “public” places would violate the law, as
citizens have not consented to being recorded.
We should mention one more thing about this bill. It was introduced
on Tuesday, Dec. 2, as an amendment to an existing bill on a completely
different subject. The amendment removed all of the bill’s previous
content and replaced it with the new ban on recording. The House passed
it the following day, and the Senate passed it the day after that. So
the people who would have cared most about this bill probably didn’t
notice it in time to object. They might have had their attention focused
on other issues that were in the news, such as the recorded police
killing of Eric Garner.
Even if this bill were constitutional, it would still be unnecessary
and a terrible idea. Most other states allow a person to record a
conversation with only one party’s consent and don’t try to scare people
out of recording police by threatening them with felony charges.
Despite its bipartisan support, Gov. Pat Quinn should do one more
thing to bolster his legacy before he leaves office and veto this bill.
Jacob Huebert
Senior Attorney, Liberty Justice Center
