If anybody wants to tape my conversations, go right ahead, feel free to do it . . . whatever I say is always lawful,” Rod Blagojevich announced to the world less than 24 hours before federal agents marched him out of his home in handcuffs.
Famous last words, of course. Also, not correct.
Illinois is one of 12 “two-party consent” states that require all parties to a conversation to agree before they can be legally recorded. Federal law and the other 38 states permit one-party consent. With a court order, law enforcement can eavesdrop without the consent of the parties.
What if the state’s eavesdropping laws were changed so that only one party needed to consent? Would Illinois politicians act differently—that is, “better”—if their conversations could be secretly taped by anyone, not just by law enforcement agencies?
“With one-party consent you’re less likely to be more open,” says Clay Calvert, the coauthor of recent editions of Mass Media Law. “You have to err on the side of caution because you never know who’s recording.” With a two-party-consent requirement, Calvert suggests, politicians (or anyone else, for that matter) don’t have to worry as much about being taped since a recording they didn’t agree to would probably not be admissible as evidence in court.
Originally, Illinois held to the easier, one-party standard. But in 1975, state lawmakers, citing civil liberty and privacy concerns, toughened the law, a so-called “reform” that the Chicago Tribune said was like using a sledgehammer to fix a Swiss watch. (Other states requiring two-party consent include California and Pennsylvania.)
In light of the Blagojevich scandal, some people are now proposing that maybe Illinois should switch back to one-party consent. “How many people have had the kind of conversations Rod had that weren’t taped?—a lot,” says the former federal prosecutor Patrick Collins, whom Governor Pat Quinn recently tapped to head a commission to propose legislative suggestions that would curb corruption. “Think about how politicians would conduct themselves if they all thought they were being recorded.”
Dave Lundy, the acting executive director of the Better Government Association, calls the idea “interesting,” but says the threat alone would not have an impact. Says Lundy: “You had [Rod] Blagojevich knowing he was likely being taped, and that still didn’t stop him from committing some of the most egregious corruption in my lifetime.”