On December 30, 2014, Gov. Quinn approved new rules regarding how private conversations can be recorded following the Illinois Supreme Court’s decisions this past March in People v. Clark, 2014 IL 115776 and in People v. Melongo, 2014 IL 114852, which struck down Illinois’ prior eavesdropping law for being overly-broad. Illinois’ previous eavesdropping law was among the strictest in the nation, making it illegal to record anyone, even in public, without their permission.
The new law now draws a distinction between a “private” conversation and other public communications, and provides that a person commits eavesdropping when he or she knowingly and intentionally:
1) uses an eavesdropping device, in a “surreptitious manner,” for the purpose of overhearing, transmitting, or recording all or part of a “private” conversation to which he or she is not a party unless he or she does so with the consent of all the parties to the conversation;
2) uses an eavesdropping device, in a “surreptitious manner,” for the purpose of transmitting or recording all or any part of any “private” conversation to which he or she is a party unless he or she does so with the consent of all of the parties to the private conversation; or
3) intercepts, records, or transcribes, in a “surreptitious manner,” any “private” electronic communication to which he or she is not a party unless he or she does so with the consent of all other parties to the private electronic communication.
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.