The smartphone revolution has brought sophisticated, handheld technology to virtually everyone. And with that comes certain risks for both individuals and employers. Consider these scenarios: 

• When the Blackhawks won the Stanley Cup, did you pull out your iPhone to film the victory parade through downtown Chicago?
• Have you used your Blackberry to record a video of police officers performing their public duties (e.g., conducting a field sobriety test or a "stop and frisk")?
• Have you downloaded a free smartphone application to secretly record in-person or phone conversations with employees, ex-spouses or others?

If you answered yes to any of these questions and there was an audio component to your recording, you may be subject to a felony charge or a civil lawsuit.

Illinois Eavesdropping Act

When ordinary citizens audio record others without their consent (even if the individuals being recorded are on a public street with no expectation of privacy and the conversation is audible to the unassisted ear), such conduct appears to violate the Illinois Eavesdropping Act. In the past, Illinois courts construed the statute to allow audio recordings if one party to the conversation consented to the recording. More often than not, it was the individual doing the recording who actually "consented" to the recording, without the other party's knowledge or consent. The Illinois General Assembly subsequently revised the statute to require the "consent of all of the parties" to the conversation:

A person commits eavesdropping when he...[k]nowingly and intentionally uses an eavesdropping device for the purpose of hearing or recording all or any part of any conversation...unless he does so...with the consent of all of the parties to such conversation....

The Illinois Eavesdropping Act defines eavesdropping devices to include "any device capable of being used to hear or record oral conversation or [to] intercept, retain, or transcribe electronic communications whether such conversation or electronic communication is conducted in person, by telephone, or by any other means." Smartphones that allow the user to openly or surreptitiously record in-person or phone conversations fall within this definition. The statute further defines conversation to mean "any oral communication between 2 or more persons regardless of whether one or more of the parties intended their communication to be of a private nature under circumstances justifying that expectation." In short, the Illinois Eavesdropping Act currently makes it illegal to record both private and public conversations without the consent of all the parties, including clearly audible conversations with no apparent expectation of privacy.

Eavesdropping, for a first offense, is a Class 4 felony, which is punishable by a prison sentence of one to three years. For a second or subsequent offense, it is a Class 3 felony punishable by a sentence of two to five years. In addition to criminalizing this conduct, the Illinois Eavesdropping Act provides a civil remedy to individuals whose conversations are taped in violation of the statute. Civil remedies include injunctive relief (e.g., a court order enjoining the defendant from continuing to record conversations), actual damages and punitive damages.

ACLU Challenges Use of Eavesdropping Act by Law Enforcement Officers

On August 18, 2010, the American Civil Liberties Union (ACLU) filed a lawsuit in the United States District Court for the Northern District of Illinois challenging the Illinois Eavesdropping Act as unconstitutional under the First Amendment. The lawsuit asserts that the "right to gather, receive, and record information is grounded in the Free Speech Clause of the First Amendment" and that the statute is currently being used by law enforcement officers to arrest and prosecute ordinary citizens who simply turn on their smartphones to record and monitor police conduct. The complaint cites examples of criminal prosecutions brought by the State's Attorneys in Cook, DeKalb, Crawford and Champaign counties.

The lawsuit asks the court to declare the Illinois Eavesdropping Act unconstitutional "as applied to the audio recording of police officers, without the consent of the officers, when (a) the officers are performing their public duties; (b) the officers are in public places; (c) the officers are speaking at a volume audible to the unassisted human ear; and (d) the manner of recording is otherwise lawful." The lawsuit further seeks an order enjoining the Cook County State's Attorney from prosecuting the ACLU for using "common audio/video recording devices" to monitor "policy activity in public places."

The head of the Chicago police union responded to the lawsuit, stating that such recordings by ordinary citizens could inhibit officers from doing their jobs.

Implications for Employers

What should employers do to protect themselves and avoid potential criminal or civil liability? Outside Illinois, you should start by determining whether your state has laws that provide for civil remedies or criminalize the recording of conversations with others, if the recording is conducted without the consent of all parties to the conversation. Whether subject to the Illinois Eavesdropping Act or other states' laws, you should develop an electronic communications policy that informs employees what they can and cannot do, and states the consequences to their employment if they violate the policy.

By means of signed consent forms, obtain written consent from all employees to any video, digital and/or audio recordings, images or photographs authorized by the company at its offices or facilities. The form should explain that this monitoring serves one or more of the following purposes: (1) to ensure the safety of employees and the entire facility, (2) to investigate possible misconduct, criminal activity or breaches of security, (3) to ensure compliance with company policies, (4) to monitor or document employees' work, (5) to investigate and respond to internal complaints, charges or governmental investigations, (6) to investigate, prosecute or defend threatened or actual lawsuits, or (7) any other legitimate business reasons. The consent form should also authorize the company to monitor and/or record all e-mail, text messages, phone conversations and other business communications and to use the contents of these communications for business purposes. The written form should obtain employee consent to such monitoring at any time, whether continuously or randomly, without further notice.

Obtaining written consent to broad monitoring and recording, however, does not mean that your management team should have free rein to use smartphones to surreptitiously record employee interviews or investigations, corrective counseling or disciplinary sessions, or conversations between employees at any level. Instead, employers should adopt policies and practices that protect their valid business interests while being sensitive to the culture of trust and mutual respect they hope to foster in the workplace. If you want to prevent the surreptitious use of smartphones in the workplace, it is important to communicate that fact clearly in your written policy and/or include an exception for such conduct in the consent forms described above. Otherwise, employers could face the same sort of backlash that Illinois law enforcement officers have experienced with ordinary citizens pulling out their smartphones to record traffic stops and other police activity.