Upholding individuals’ free speech rights, the Illinois Supreme Court recently struck down the Illinois Eavesdropping Act as unconstitutionally overbroad. As of April, 2014, electronic recording of conversations is permissible in Illinois, subject to copyright, privacy and other important restrictions. That permissibility may be short-lived, but the lesson is clear: if Illinois legislators want to prohibit eavesdropping, they better craft a much narrower statute.
The Supreme Court’s Decisions
The Illinois Supreme Court decided two cases regarding the Eavesdropping Act on March 20, 2014. In both they ruled individuals could not be criminally prosecuted under the Act because of the unconstitutional burden the Act placed on the individuals’ free speech rights. In People v. Clark, Docket No. 115776, the defendant was charged with eavesdropping after recording audio conversations between himself, the opposing attorney, and the judge ruling over a child support matter involving the defendant.
In People v. Melongo, Docket No. 114852, the defendant was charged with eavesdropping after she recorded and published to her website telephone conversations with a supervisor of court reporters. The defendant and the supervisor were discussing a dispute over the need to change a docket sheet to reflect the defendant’s presence at an arraignment.
Most notably, the Court recognized in both cases that the Eavesdropping Act’s breadth allowed for criminal prosecution of even innocent behavior. The Act could even prevent open recording of public communications such as a political debate in a park or on a college campus. For these reasons, the Court invalidated the Act as unconstitutionally vague. Consequently, no law against eavesdropping currently exists. It is now up to the Illinois legislature to pass new legislation addressing the concerns of the Court.
May organizations still prohibit recording of audio communications?
Nothing in the Illinois Supreme Court’s decision prohibits organizations from maintaining policies prohibiting the recording and publishing of audio communications. For example, universities and professors may require that students get permission from professors before recording lectures to protect legitimate copyright interests in such materials.
In the employment context, employers may deny requests by employees to record most meetings. Organizations should be aware, however, that limitations may exist for these types of denials, particularly in the area of meetings regarding employee discipline. Many uncertainties in the law persist regarding such denials. An organization planning to adopt a policy prohibiting such recordings or considering denying a particular request to record communications thus should consult legal counsel before acting.
What does this mean for those who want to record communications? Are there still limitations?
As a result of these decisions, it may now be permissible in Illinois to record audio communications and possibly publish those recordings, subject to copyright, privacy, and other important restrictions. Individuals who wish to record conversations, however, should be aware that the parties involved may have certain rights that would allow them to sue if such communications were recorded and/or published.
For example, strong privacy interests may exist for private communications. Such interests may give rise to an invasion of privacy claim or similar tort-related liability if a person shares such communications with others or publicly. In addition, ethical responsibilities may prohibit disclosure of sensitive information, such as those applying to health and legal professionals. Moreover, certain contractual obligations may preclude such disclosure. Liability also may result under copyright laws, such as for “bootlegged” recordings and similarly unauthorized performances or publications of speeches that qualify as protected creative works. Individuals wishing to record and publish communications thus should seek advice from experienced legal counsel.
Last, as is often the case, it is sometimes advisable to simply ask permission. Whatever the underlying reason, a person who wants to record an important conversation – to take notes or to get someone “on the record” – typically should ask the other participant if he or she agrees to the recordation. Such consent should be reflected in the recording itself or in writing. Getting consent in advance can bring needed clarity to the permissibility of recording communications.
