Private Conversations Protected Under New Illinois Eavesdropping Law

The statute defines “surreptitious manner” as “obtained or made by stealth or deception, or executed through secrecy or concealment.”

Thus, the new eavesdropping law requires that all parties involved in a “private” conversation give their permission to be recorded. The new statute defines a “private” conversation as an oral communication between two or more people in which the parties have a “reasonable expectation” that the discussion will remain private. The statute provides no definition of what entails a “reasonable expectation” of privacy, thereby leaving the courts to determine this on a case-by-case basis.

This means, for example, that it would likely be illegal for one party to secretly record another party over the phone or in a home setting. It would be legal, however, to record that same conversation if it were taking place loudly on the street in public. In other words, if it happens in public, without a reasonable expectation of privacy, it can be recorded absent consent of the other party. The bottom-line is that everyone in a “private” conversation must consent to the recording.

The new eavesdropping law also prohibits the use or disclosure of any information which a party knows or reasonably should know was obtained from a “private” conversation or “private” electronic communication in violation of the provisions in the statute, unless he or she does so with the consent of all of the parties. Thus, the new law also appears to make it a crime for someone to forward an email or other electronic communication (i.e. a text message) that the sender intended to be private without that party’s consent.