August 1, 2012

Summary of statute(s): In Illinois, an eavesdropping device cannot be used to record or overhear a conversation or intercept, retain or transcribe a telephone or electronic communication without the consent of all parties involved. While the all-party consent requirement does not apply to police officers acting within the scope of their duties, the law provides for harsher penalties for anyone caught recording police activities while in public. The U.S. Court of Appeals in Chicago (7th Cir.) put the constitutionality of the state’s eavesdropping law into question in May 2012.

In-person conversations: The state requires all parties to a conversation to give consent before one can record “all or any part of any” oral conversation. 720 Ill. Compiled Stat. 5/14-2(a)(1). The eavesdropping provisions apply regardless of whether any of the participants intended the conversation to be private. 720 Ill. Compiled Stat. 5/14-1(d). The eavesdropping statute, however, exempts the all-party consent requirement for police officers acting in the scope of their law enforcement duties. 720 Ill. Compiled Stat. 5/14-3(g).

Electronic communications: Similarly, the statute makes it a felony to intercept any telephone or electronic communication unless all parties give their consent. 720 Ill. Compiled Stat. 5/14-1, -2. Because the provision of the statute dealing with electronic communications applies to “any transfer of signs, signals, writing, images, sounds, data or intelligence of any nature,” consent likewise is required to disclose the contents of text or e-mail messages sent between wireless devices. 720 Ill. Compiled Stat. 5/14-1(e).

Hidden cameras: A person cannot “videotape, photograph, or film another person without that person’s consent in a restroom, tanning bed or tanning salon, locker room, changing room or hotel bedroom,” or in their residence without their consent. 720 Ill. Compiled Stat. 5/26-4. The law also prohibits the concealed photography and video recordings of an individual’s body either under or through that person’s clothing without that person’s knowledge or consent. Id. 5/26-4(a-10).

Criminal penalties: Violations of the eavesdropping law are punishable as felonies, with first offenses categorized as lesser, Class 4 felonies than subsequent offenses. 720 Ill. Compiled Stat. 5/14-4. Violations are elevated to a Class 1 felony with a possible prison term of up to 15 years if one of the recorded individuals is a law enforcement officer, assistant state’s attorney or judge “while in the performance of his or her official duties.” 720 Ill. Compiled Stat. 5/14-4(b). The U.S. Court of Appeals in Chicago (7th Cir.), however, put the constitutionality of this provision into question by concluding that portions of the Illinois Eavesdropping Act are “likely unconstitutional” and could not be applied to the American Civil Liberties Union of Illinois when it records conversations of police officers openly engaged in their public duties. ACLU of Illinois v. Alvarez, 679 F.3d 583 (7th Cir. 2012).

Civil suits: Participants to any communication intercepted or recorded in violation of the state’s eavesdropping statute have civil remedies that include injunctive relief prohibiting any further eavesdropping, as well as actual and punitive damages against the eavesdropper. 720 Ill. Compiled Stat. 5/14-6.

Disclosing recordings: The eavesdropping law makes it illegal to use or information one knows or should have known was obtained with an eavesdropping device. 720 Ill. Compiled Stat. 5/14-2(a)(3). However, not disclosing the contents of the illegally obtained communication is an affirmative defense to the charge. 720 Ill. Compiled Stat. 5/14-2(b)(4). Further, disclosing video images taken in violation of the state’s voyeurism law is a felony. 720 Ill. Compiled Stat. 5/26-4(a-25).