Problem solved — or is it?

New eavesdropping law back on books, but poses questions

All in the Family

Dan Stefani

Dan Stefani is a principal at Katz & Stefani and primarily handles family law matters that require detailed analyses of complex transactions and business valuations. His work on behalf of mainly high net worth clients, as well as spouses of high net worth individuals, involves valuations of closely held corporations, partnerships and other entities, child custody and support issues as well as paternity and domestic violence.

April 2015

Former Gov. Pat Quinn signed into law on Dec. 30 a new Illinois eavesdropping law that took effect the same day.

The law followed a window of time from March 20 of last year through Dec. 30 in which the state of Illinois was without a law prohibiting eavesdropping. This law makes eavesdropping a crime in Illinois, but it contains ambiguous language.

On March 20 of last year, the Illinois Supreme Court, in People v. Clark, 2014 IL 115776, struck down Illinois’ prior eavesdropping law for being overly broad and violative of the U.S. Constitution’s First Amendment. Specifically, the statute read “(a) A person commits eavesdropping when he: (1) Knowingly and intentionally uses an eavesdropping device for the purpose of hearing or recording all or any part of any conversation or intercepts, retains, **82 *159 or transcribes electronic communication unless he does so (A) with the consent of all of the parties to such conversation or electronic communication ***[.]” 720 ILCS 5/14-2(a)(1)(A) (West 2010).

The statute defined conversation as any oral communication between two or more people regardless of whether one or more of the parties intended their communication to be of a private nature under circumstances justifying that expectation. The Illinois Supreme Court specifically stated that the statute was overly broad because it extended to conversations that were not intended to be private (which was the purpose of the statute) and it criminalized a great deal of wholly innocent conduct.

The old statute was one of the most oppressive of its kind in the country, making it illegal to record anyone (even in public) without their permission.

The new statute appears to satisfy (or at least move closer to) the Supreme Court’s stated requirement by limiting the law’s application to conversations or communications in which there is a reasonable expectation of privacy. A reasonable expectation shall include any expectation recognized by law, including but not limited to an expectation derived from a privilege, immunity or right established by common law, Supreme Court rule or the Illinois or U.S. Constitution. There is certainly enough law relating to slander, libel and invasion of privacy that could help define such a term.

The new law now draws a distinction between a private conversation and other public communications and provides that a person commits a crime by eavesdropping when he or she knowingly and intentionally:

(1) Uses an eavesdropping device, in a surreptitious manner, for the purpose of overhearing, transmitting or recording all or part of a private conversation to which he or she is not a party unless he or she does so with the consent of all the parties to the conversation;

(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; or

(3) Intercepts, records or transcribes, in a surreptitious manner, any private electronic communications to which he or she is not a party unless he or she does so with the consent of all other parties to the private electronic communication.

The statute defines “surreptitious” as “obtained or made by stealth or deception or executed through secrecy or concealment.”

Thus, the new eavesdropping law requires that all parties involved in a “private conversation” give their permission to be recorded. The new statute defines a “private conversation” as an oral communication between two or more persons, whether in person or transmitted between the parties or other means, when one or more of the parties had a reasonable expectation that the discussion will remain private.

Unlawfully recording conversations with police or an attorney general, assistant attorney general, state’s attorney or judge is a Class 3 felony, which carries a sentence of two to four years in prison for the first offenses. Meanwhile, it makes the illegal recording of a private citizen a Class 4 felony which carries a lower sentence range of one to three years in prison.

The law also allows for law enforcement officials to seek approval from the state’s attorney for an exemption when investigating cases including drug crimes, assault, abduction, murder and gun running. The statute does not address the issue of body cameras for police. This should be a hot topic in the coming year, especially given the events in Ferguson, Mo.

The new eavesdropping law does create some other interesting issues and other additional problems down the road. Specifically, since the law prohibits the use or disclosure of any information which a party knows, or reasonably should know, was obtained from a private electronic communication (unless he or she does so with the consent of all parties), it is now likely a crime for someone to forward an e-mail or other electronic communication such as text message that was intended to be private by the sender. This opens the door to myriad scenarios in which people are arguably committing a crime when they do not knowingly do so, but they arguably reasonably should have known.

Maybe we need a disclaimer on our e-mails and text messages that we consider the content a private conversation.