720 I.L.C.S. § 5/14-2(a) (Illinois Eavesdropping
Law); People v. Beardsley, 503 N.E.2d 346 (Ill.
1986); People v. Clark, 6 N.E.3d 154 (Ill. 2014).
Section 5/14-2(a)(1)(2) was amended in 2014
to make “eavesdropping” a felony if a person:
(1) Uses an eavesdropping device, in a
surreptitious manner, for the purpose of
overhearing, transmitting, or recording all
or any part of any private conversation to
which he or she is not a party unless he or
she does so with the consent of all of the
parties to the private conversation; or
(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 other parties to the
private conversation.
(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 parties to the
private electronic communication;
Section 5/14-1 defines “eavesdropping” (a
felony) as using any device capable hearing or
recording oral conversation or intercept or
transcribe electronic communications
whether such conversation or electronic
communication is conducted in person, by
telephone, or by any other means.
The use of an eavesdropping device is
surreptitious if it is done with stealth,
deception, secrecy, or concealment.
Therefore, it permits recording of
conversations in public places, such as
courtrooms, that no person could expect to
be private.
The law in Illinois is confusing and in flux. For years, § 5/14-2(a) made it a crime to use
an “eavesdropping device” to overhear or record a phone call or conversation without
the consent of all parties to the conversation, regardless of whether the parties had an
expectation of privacy. Illinois courts have ruled that “eavesdropping” only applied to
conversations that the party otherwise would not have been able to hear, thereby
effectively making it a one-party consent state. However, there still appears to be
confusion and debate over the law. The statute had repeatedly and controversially
been used to arrest people who have video-taped police. In People v. Clark, 6 N.E.3d
154 (Ill. 2014) and People v. Melongo, 6 N.E.3d 120 (Ill. 2014), the Supreme Court held
that § 5/14-2 made it a crime to knowingly and intentionally use eavesdropping devices
to hear or record all or any part of any conversation, unless done with consent of all
parties to conversation or authorized by court order, was unconstitutionally overbroad
on its face, declaring it unconstitutional.
On December 30, 2014, the statute was amended to permit recording of conversations
in public places, such as in courtrooms, where no person reasonably would expect it to
be private. The new statute draws a distinction between a “private” conversation and
other public communications. The new statute includes language indicating that in
order to commit a criminal offense, a person must be recording “in a surreptitious
manner.” It addressed a number of circumstances where there were no legitimate
privacy interests. The statute provides no guidelines or factors with regard to when an
expectation of privacy is reasonable. While the statute leaves open to debate whether a
particular “private conversation” falls within the purview of the revised law, some
argue that the new statute leaves no doubt that Illinois remains firmly within the
minority of “all-party” consent states. The amended statute requires that all parties to
an oral communication consent to the use of an eavesdropping device for that use to be
lawful.
On the other hand, by negative implication, the amended statute also appears to
establish a “one-party” consent rule for private electronic communications, by
prohibiting only someone who is not a party to a conversation from surreptitiously
using an eavesdropping device to intercept, record or transcribe such a communication
(e.g., telephone, video conference, etc.). A private electronic communication is defined
as “any transfer of signs, signals, writing, images, sounds, data, or intelligence ...
transmitted in whole or part by a wire, radio, pager, computer, electromagnetic, photo
or optical system, when the sending or receiving party intends the electronic
communication to be private under circumstances reasonably justifying that
expectation. Therefore, by negative implication, the revised statute appears to permit
someone who is a party to a telephone or a video conference to electronically record
the call without notifying any other party to the call or obtaining their consent.
A first offense is a Class 3 felony (maximum 2-5 years and $25,000 fine) and a
subsequent offense is a Class 2 felony (maximum 3-7 years and $25,000 fine).