Saturday, March 22, 2014

Illinois recording ban struck down

Illinois has a law against audio recording similar to California's, and it was just struck down:
Under Illinois law, any person who “knowingly and intentionally uses an eavesdropping device for the purpose of hearing or recording all or any part of any conversation” is committing a crime “unless he does so … with the consent of all of the parties to such conversation or electronic communication.” This isn’t limited to conversations that the parties reasonably intend to be private: “conversation” is defined as as “any oral communication between 2 or more persons regardless of whether one or more of the parties intended their communication to be of a private nature under circumstances justifying that expectation.”

DeForest Clark was indicted for violating this law; here’s how the ACLU of Illinois amicus brief describes the facts:
[The] charges arose from a September 17, 2010 child support hearing before Judge Robert Janes in Kane County Circuit Court. Mr. Clark represented himself pro se at the hearing. The hearing was conducted in open court and no court reporter was present. Mr. Clark recorded the hearing in order to preserve a true and accurate record of public proceedings in which he was representing himself without the assistance of counsel and without the benefit of a court reporter. For the same reason, Mr. Clark also allegedly recorded a conversation between himself and opposing counsel, Colleen Thomas, prior to the hearing in a public hallway in the Kane County Judicial Center.
Thursday, the Illinois Supreme Court held that the statute violates the First Amendment (People v. Clark (Ill. Mar. 20, 2014)).
It is appalling that anyone could think that there was anything wrong with a dad wanting to keep a record of a court proceeding against him.

I do not know whether California has this exception:
Note, by the way, that the Illinois statute does have one narrow but important exception: “Recording of a conversation made by or at the request of a person … 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.” That at least helps people gather evidence that they need to protect themselves against extortion, threats, false accusations, and other crime — a very valuable exception, it seems to me.
That is another case where recording should be obviously justified.


Anonymous said...

Few states, if any, permit video recording of proceedings as well.

Unless you retain a private court reporter, records are sometimes redacted; I know of at least one child custody litigant in Illinois who discovered last fall when he ordered court transcripts only to discover missing statements he noted during an open hearing. After a similar incident in my case, I always carry a hiden recorder and hire my own court reporter to preserve the record.

Judges will face greater scrutiny and accountability to abide by judicial canons, rules of procedure and statutes if they are video recorded.

Anonymous said...

I think in California, you can't record a court proceeding, but such proceedings are always recorded by the court, either by a reporter or by an electronic recording.

I once heard a judge make a statement that sounded completely outrageous to me, so within a day or so I asked the court reporter for a transcript. It turned out that the comment was made in between cases, and the transcript didn't include the outrageous comment.