The Illinois Supreme Court recently ruled that part of the Illinois eavesdropping statute is unconstitutional 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 eavesdropping statute was unconstitutionally overbroad because it prohibited the recording of conversations without the consent of ALL parties, even conversations where the parties had no reasonable expectation of privacy. For example, the statute prohibited 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. In reaching its conclusions, the court noted that recording information for the purposes of preserving and disseminating it is within the First Amendment’s free speech guarantee.
As a result of the Supreme Court’s decision, Illinois currently does not have an enforceable eavesdropping statute. Nevertheless, you should consider the following points before recording a conversation in Illinois:
- 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.