In the old days, it was fairly easy for people to determine if their personal conversations were being recorded because private recording equipment was so arcane that about the only way to obtain reliable audio was to stick a microphone in someone's face. But today, with just a couple of taps, almost anyone can record almost anything that someone else says.
With cell phones, just about anyone can record a conversation anywhere or even livestream the interaction without the other party knowing, but the important legal question is do you want to take that action knowing that recording someone without their permission can result in incarceration ranging from 1-7 years in the Illinois Department of Corrections?
Most people’s confusion about the leagality of recording others comes in the different legal standards in different jurisdictions.
There are one party consent jurisdictions. These generally provide:
- That it is not illegal to record a conversation between multiple parties, so long as at least one party to the conversation has consented to the recording.
- The practical effect is that individuals may record conversations that they are a party to (i.e., the recorder is the one party who has consented).
Illinois is NOT a one party state. Illinois is a two party consent state. This means that ALL the parties to the conversation MUST consent for the recording to not violate the law. Two party consent jurisdictions generally provide:
- That it is illegal to record a conversation unless all parties to that conversation have consented to the recording.
- These are also referred to as "all-party consent" statutes
- Statutes are classified as two-party consent even if they only require it in limited situations (e.g., the Illinois Eavesdropping Act, which only requires two-party consent for conversations in which a party has a reasonable expectation of privacy)
Thus is you are accused of violating this statute, the question will become, was there a reasonable expectation of privacy to the conversation?
The Big Picture
Under the Constitution, people have a right to keep private conversations private, so the no-recording rule generally applies in situations that involve a reasonable expectation of privacy.
This expectation still arises in a number of situations. Attorney-client, doctor-patient, and broker-client spring immediately to mind. In fact, the attorney, doctor, and broker all face substantial disciplinary or other sanctions if they wrongfully use the information they obtain in such discussions.
The law in the Prairie State is fairly well-established, and requires both parties in a private conversation to consent to its recording. As for private conversations, the new law somewhat clarifies the expectation of privacy, as it prohibits:
- Surreptitious Recording: An act is surreptitious if it is done in secret, a high degree of concealment, and/or some deception.
- Private Conversation: Here again is the reasonable expectation of privacy issue, which in today’s world, is applicable only in a few situations..
In other words, if the recorded party has a reasonable expectation of privacy and the recording party secretly records a conversation anyway, the recording party is guilty of a felony. To clarify, Illinois is a state where the law requires the consent of both parties before a conversation can be recorded, with limited exceptions to that rule.
In addition to surreptitious private recordings, the penal code also prohibits intercepting third-party conversations, manufacturing an eavesdropping device, and using any information “which he or she knows or reasonably should know was obtained from a private conversation or private electronic communication in violation of this Article.”
Recording Conversations at Work
Conversations at work sometimes come with little or no expectation of privacy, such as watercooler talk, conference room meetings, and so on. However, the conversation may be transformed into a private conversation in discussing things like trade secrets, business practices or strategies, or human resource issues. Private discussions still require the consent of both parties, especially if a professional, like a doctor, lawyer, or accountant, is at all involved in the conversation.
In any situation, 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).
Count on Experienced Attorneys
With today’s technology, you can record almost any conversation, but just like Grandmom used to say, “Just because you can do something, doesn’t mean you should do something.” Think twice before you decide to record that conversation.
For a confidential consultation with an experienced criminal law attorney, contact Glasgow & Olsson.
(image courtesy of Kate Reinholdtsen)