The Illinois Supreme Court recently ruled that the Illinois eavesdropping statute (the Statute) was unconstitutional on its face, in opinions in People v. Clark, 2014 IL 1097190, and People v. Melongo, 2014 IL 114852, issued simultaneously on March 20, 2014. The court held that the Statute was unconstitutionally overbroad because it prohibited the recording of all conversations, including ones where the parties had no reasonable expectations of privacy. The effect of this ruling is that Illinois currently does not have an enforceable state law criminalizing the recording of conversations without the consent of all parties.

Nevertheless, federal law still requires the consent of one party to the conversation in order for it to be lawfully recorded (with very limited exceptions generally involving court orders in criminal investigations), and many states require the consent of all parties to a conversation in order for it to be lawfully recorded (again, with very limited exceptions). Additionally, members of the Illinois General Assembly have expressed a desire to pass a new eavesdropping statute addressing the court’s concerns by tailoring it narrowly to apply to conversations where privacy interests are truly implicated.

Background

For more than 50 years, the Illinois eavesdropping statute (720 ILCS 5/14-2) prohibited the recording of any conversation in Illinois without the consent of all parties to the conversation. Specifically, the Statute provides that it is, except in very limited circumstances, a felony to knowingly and intentionally use “an eavesdropping device for the purpose of hearing or recording all or any part of any conversation,” or to intercept, retain or transcribe electronic communications, unless done “with the consent of all of the parties to such conversation or electronic communication.” The Statute also states that it is generally unlawful for someone to use or divulge information which he or she knows or reasonably should know was obtained through the use of an “eavesdropping device.”

In 1994, the Illinois General Assembly amended the Statute to define “conversation” as “any oral communication … regardless of whether one or more of the parties intended their communication to be of a private nature[.]” 720 ILCS 5/14-1(d). The General Assembly added this definition to make it clear that the Statute covered all conversations in Illinois, not just conversations where the parties had an expectation of privacy.

The Illinois Supreme Court considered challenges to the breadth of the amended statute in People v. Clark and People v. Melongo. In Clark, the defendant was charged with violating the statute by taping his conversation with a county judge and an opposing counsel in a civil lawsuit without their consent. In Melongo, the defendant was charged with violating the statute by surreptitiously taping her conversation with an employee of the Cook County Court Reporter’s Office and later publishing the recording on her personal website. In both cases, the circuit court dismissed the indictments on First Amendment grounds, holding that the Statute was unconstitutionally overbroad either on its face or as applied to the particular defendant.

Supreme Court Overrules Eavesdropping Statute

In both Clark and Melongo, the Illinois Supreme Court held that the recording provision of the Statute was unconstitutional on its face because a substantial number of its applications would suppress free speech in violation of the First Amendment. In addition, in Melongo, the court declared the Statute’s publication prohibition unconstitutional for the same reason.

In reaching its conclusions, the court noted in Clark that recording information for the purposes of preserving and disseminating it is within the First Amendment’s free speech guarantee. Because the Statute is content-neutral, the court stated the Statute would not violate the First Amendment if it advanced an important government interest unrelated to the suppression of speech that did not burden substantially more speech than necessary to further that government interest. The court also stated that the Statute’s purpose, the protection of communications in which participants had an expectation of privacy, was an important government interest. However, it held that the Statute substantially burdened constitutionally protected speech by prohibiting recordings of conversations where the parties had no expectation of privacy. Examples the court provided include recording: (1) a loud argument on the street, (2) yelling fans at an athletic event and (3) a political debate in a place open to the public.

As a result, the Illinois Supreme Court struck down the recording and publication provisions of the Statute as overbroad under the First Amendment.

Practical Impact

Any individual or entity should consider the following points before recording a conversation in Illinois or changing policies regarding recording: 

• Federal Law Requires One-Party Consent: The Electronic Communications Privacy Act still prohibits recording conversations without the consent of one of the parties where the communication or recording entity affects interstate commerce. 18 U.S.C. § 2511.
• Many Other States Still Require Two-Party Consent: Many states still require consent by all parties before a conversation can be recorded, including, among others, California, Florida and Massachusetts. 
• Potential Civil Liability: Illinois law recognizes a cause of action for invasion of privacy, or “unlawful intrusion into the seclusion of another,” and surreptitious recording of private conversations could potentially support such a claim. See Narducci v. Village of Bellwood, 444 F.Supp.2d 924, 938 (N.D. Ill. 2006) (applying Illinois law). 
• Future Legislation in Illinois: The Supreme Court left the door open for a statute tailored more narrowly to conversations where participants have a reasonable expectation of privacy.

Given these concerns, individuals and corporations generally should not begin recording conversations in response to the new opinions, unless all participants consent. Although there is no longer criminal liability for such conduct under Illinois’s eavesdropping statute, at least for now, substantial potential for liability remains.