On March 20, 2014, the Illinois Supreme Court held that significant portions of the Illinois eavesdropping statute, 720 ILCS 5/14-1 et seq., (the Statute) violated the First Amendment. In People v. Clark, 2014 IL 115776, and People v. Melongo, 2014 IL 114852, the court held that the Statute was unconstitutionally overbroad because it prohibited the open recording of public conversations—an aspect of free speech—rather than merely protecting the privacy of non-public conversations, or “conversational privacy,” a legitimate state concern. On December 30, 2014, then-Governor Pat Quinn signed into law an amendment to the Statute, PA 98-1142, (the Amendment) which narrowed the scope of the law in response to these decisions. The Amendment limits the Statute’s scope, which includes both civil and criminal penalties, to the surreptitious recording of private conversations and electronic communications.
Even following these changes, Illinois remains an “all-party consent” state, meaning that it is illegal to record private conversations or electronic communications without the consent of every party. Individuals and entities in Illinois should exercise caution when making any decisions about recording conversations or electronic communications that could reasonably be considered to be private. In particular, employers or businesses with policies or procedures that address the recording of conversations or electronic communications, even if done in the scope of an investigatory or disciplinary action, should keep in mind the requirements of the recently amended Statute, as well as the eavesdropping statutes of other jurisdictions that might apply, and the potential for civil liability in Illinois.
History of the Eavesdropping Statute
From 1994 to 2014, the Statute—previously one of the strictest eavesdropping laws in the United States—prohibited the recording of any conversation without the consent of all parties involved, whether or not the parties intended the conversation to be private. This broad prohibition had the effect of criminalizing open recording of public conversations, and it was routinely criticized in the courts and the media. Opponents launched a series of legal challenges to the Statute on First Amendment grounds.
First, in ACLU of Ill. v. Alvarez, 679 F.3d 583 (7th Cir. 2012), a federal court in Chicago found that the Statute was unconstitutional as applied to an ACLU police accountability program and enjoined the Cook County State’s Attorney from applying the Statute in that instance. Next, the Illinois Supreme Court, in Clark and Melongo, struck down the main provisions of the Statute as unconstitutionally broad in all circumstances.
While Alvarez, Clark and Melongo all recognized that Illinois could properly protect conversational privacy, each opinion criticized the Statute for failing to distinguish open recording from surreptitious recording, or public discussion from private conversation. This line of cases effectively left Illinois without an enforceable eavesdropping statute as of March 20, 2014.
Amendment to the Eavesdropping Statute
Alvarez, Clark and Melongo left the door open for the Illinois General Assembly to pass a more tailored eavesdropping law. Efforts to amend the Statute in this manner began after Alvarez and, after Clark and Melongo, culminated with the passage and adoption of the Amendment. The most noteworthy changes contained in the Amendment are summarized below.
- “Private” Conversations. The Amendment only prohibits certain recording of “private conversations,” which the law defines as oral conversations, however...
