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Listening In: Go Ahead, If It’s Not Private (That Is, Eavesdropping)

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May a person legally record a conversation or other verbal exchange, such as through a cellphone or other video device? State laws vary on this issue, and a new law in Illinois is now in effect. A little more than a year ago, the Illinois Eavesdropping Act was struck down as unconstitutional by the Illinois Supreme Court. The new statute, which became effective as of December 30, 2014, once again makes it a crime to “eavesdrop” but under substantially more limited circumstances that essentially focus on privacy considerations. (720 ILCS 5/14.)

In Illinois, a person commits the crime of eavesdropping now only if he or she “surreptitiously” uses a device to overhear, transmit, or record a private conversation without consent of all parties to the conversation.The term “surreptitious” means "obtained or made by stealth or deception, or executed through secrecy or concealment.”In other words, a person may not hide the fact that he or she records the conversation. Recording or transmitting conversations in which “no reasonable expectation of privacy” exists does not constitute criminal eavesdropping. It is therefore not a crime to openly and obviously listen to another’s conversation or record it. 

How does one know whether a conversation is “private”? Privacy depends, in turn, on whether one or more of the parties “reasonablyintended”the communication to be of a private nature, based on all the circumstances. So if a person expressly stated something like “this discussion is private and may not be recorded,” then any use of a recordation device would be surreptitious and therefore unlawful. On the other hand, if one person told the other person that the conversation would be recorded, and the other person did note indicate any objection, it likely would be legally permissible. 

When the individual is not a party to the conversation, the new law makes it unlawful to engage in surreptitious intercepting, recording, or transcribing of a private electronic communication, without the consent of all parties. Second, it is unlawful to use or disclose information that a person knows (or reasonably should know) was obtained through eavesdropping, without consent of all parties to the conversation. So consent is critical in such circumstances.

Remember that the question of whether a person’s expectation of privacy was or was not sufficiently “reasonable” under the circumstances may be subject to a judge’s or jury’s interpretation, as part of a criminal trial. The consequences for an adverse ruling include a felony conviction for violation of the new eavesdropping law, civil penalties owed for actual damages, and even punitive damages. So think carefully before using a recording device, recording a conversation, or otherwise using such data. When in doubt, get express permission - such as through each person’s verbal assent on the recording itself. 

The statute also lists several exemptions, most of which concern law enforcement personnel. One particularly important exemption is that an individual may record a conversation in certain circumstances to obtain evidence of a crime. Where there is reason to believe that evidence of a criminal offense may be obtained by the recording, recording is acceptable if a party to the conversation requests such recording based on a belief that another party to the conversation is committing, is about to commit, or has committed a crime against the requesting party or a member of his/her immediate household. This statutory development was expressly intended to curb and address alleged police misconduct. 

Last, keep in mind that other important legal considerations apply for recording communications, including privacy interests, contractual obligations, and ethical responsibilities. Please see our law firm’s previous blog article, “Who’s Listening? Illinois Eavesdropping Law Held Unconstitutional,” for more information. To read our previous article, click here. 

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