In March of last year, the Illinois Supreme Court struck down the Illinois Eavesdropping Act, holding that it was unconstitutionally overbroad and not narrowly tailored enough to meet constitutional standards.  In an attempt to address these problems, the statute was amended and it is now illegal for a person knowingly and intentionally to use a device surreptitiously to record, intercept, overhear or transmit a private communication without the consent of all parties to the communication. 720 ILCS 5/14. The prohibition applies broadly to all forms of oral or electronic communication.

Recording is Permissible with All Parties' Consent

The statute is not violated when all parties consent to an act that otherwise would constitute eavesdropping. Express consent is an explicit statement that a party agrees to allow the activity. Implied consent probably suffices as well, based upon case law decided before the statute was amended. Implied consent may exist when a party is aware that the conversation is being recorded and nonetheless proceeds with the conversation. For instance, when a party continues with a call in the face of a statement at the beginning of a call that the call may be recorded, then the caller may have impliedly consented to recording the call.

The Surreptitious Requirement

Illegal eavesdropping occurs only when the eavesdropping is "surreptitious." The statute defines surreptitious as "obtained by stealth or deception, or executed through secrecy or concealment." This language may require active steps to hide that eavesdropping is occurring, but there may well be circumstances where silence about whether the conversation is being recorded would amount to "secrecy or concealment" and would satisfy the “surreptitious” requirement.

The Statute Only Applies To "Private" Communications

A person commits unlawful eavesdropping only when the recorded communication is "private." Under the statute, a communication is "private" if at least one party intended that the communication would be private and if that expectation was "reasonable." The "reasonable expectation" standard includes expectations recognized by law, including expectations derived from a privilege, immunity, or right established by common law, Supreme Court rule, or the Illinois or United States Constitution.

For example, there is likely a reasonable expectation of privacy about a conversation within one's own home, while there probably is not a reasonable expectation of privacy concerning a conversation that occurs in a crowded public park. Within those extremes, is there a reasonable expectation of privacy regarding a conversation during a business dinner in a crowded, business-focused restaurant? Is it reasonable for a person who calls to inquire about a company's products or services to expect that the conversation will be private from others at that company?

The Eavesdropping Act Applies to E-mails

Unlawful eavesdropping also occurs when a person surreptitiously intercepts, records, or transcribes private electronic communications, including e-mails. When electronic communications are involved, the statute applies only to a person who is "not a party" to the communication. This provision appears to mean that a person may record or transcribe an electronic communication directed to that person, whether or not the other party consents. For example, a party who forwards an electronic communication with another party would not appear to violate the statute.

Purely Internal E-mail Communications

Businesses that have an announced policy of recording or transcribing employees' internal e-mail communications would seem not to face liability with respect to e-mails between the employees of that business. By retaining such an e-mail, the business arguably "intercepts, records or transcribes" the e-mail. However, if the retention policy is announced to employees, then any recording probably would not qualify as "surreptitious"

External E-mails Raise Difficult Issues

Inbound communications from parties outside of the company raise thornier issues. Many companies keep a record of all e-mails, and this retention often is routine and automatic. When the inbound communication concerns a business matter, the employee who receives it is probably an agent of the employer. The employer consequently likely would be considered to be a party to the e-mail and so would be able to retain it without violating the statute.

Inbound personal communications from parties outside of the company raise more pressing concerns. Is the company a party to that e-mail, even though it was a personal communication between two individuals, given that the e-mail was addressed to the company's e-mail domain? Does the outside sender have a reasonable expectation of privacy with respect to an e-mail that it is addressed to a work e-mail account? Is it "surreptitious" for a company to retain e-mails when the company merely gives the external sender no affirmative warning that the company will be doing so?

Civil Consequences for Illegal Eavesdropping

In addition to potential criminal liability, a party who illegally eavesdrops faces civil penalties and consequences. If a recording violates the statute, then the recording is not admissible in any criminal or civil trial or in any administrative proceeding — potentially frustrating the very purpose for making the recording in the first place. Further, the statute expressly allows those who are subjected to wrongful eavesdropping to recover punitive damages and damages for any actual harm. A plaintiff also may be able to sue under other legal theories, including privacy claims. See e.g., Narducci v. Village of Bellwood, 444 F.Supp.2d 924, 938 (N.D. Ill. 2006) (applying Illinois law).

Interstate Application of the Illinois Eavesdropping Statute

Where at least one of the parties to an interstate communication is within Illinois, the Illinois eavesdropping law may apply even if the other party was in another state when the recording occurred. See e.g., Kearney v. Salomon Smith Barney, Inc., 39 Cal. 4th 95, 137 P.3d 914 (2006) (noting that "out-of-state companies that do business in California ... are subject to California law with regard to the recording of telephone conversations made to or received from California"). Consequently, even those outside of Illinois need to be mindful of the potential applicability of the Illinois eavesdropping statute to recordings involving persons located in Illinois.

Conclusion

The amended Illinois eavesdropping statute adds some clarity for businesses, but also raises new questions. The law remains strict, and businesses must ensure they do not inadvertently violate this statute.