Illinois Supreme Court Strikes Down Eavesdropping Statute as Unconstitutional

People v. Melongo, 2014 IL 114852

This blog recently reported on developments in California regarding potential liability for businesses under California’s Call Recording and Monitoring Privacy Laws for recording or monitoring inbound and outbound telephone calls with customers or employees as well certification pitfalls to such cases.  Other states, such as Illinois, have similar criminal statutes related to the recording or monitoring of such calls.  In Illinois, for example, it is a crime for any person to record any conversation or electronic communication unless done so with the permission and consent of all parties to the communication.  See 720 ILCS 5/14-2.  While recent California opinions have curtailed the ability for plaintiffs to bring class action complaints under California’s privacy laws, the Illinois Supreme Court has gone even further.  In a pair of opinions recently released by the Illinois Supreme Court, People v. Clark and People v. Melongo, the Illinois eavesdropping law was declared unconstitutional as violating the overbreadth doctrine under the First Amendment of the United States Constitution.

The Decisions in Clark and Molongo

In Clark, a Kane County man was charged with violating the eavesdropping law when he recorded judicial proceedings relating to a child support matter because there was no court reporter present.  People v. Clark, 2014 IL 115776 (March 20, 2014).  The Illinois Supreme Court recognized that while protecting “[a]udio recordings of truly private conversations are within the legitimate scope of the statute,” innocent conduct is also prohibited.  By way of example, the court explained that the statute criminalizes “(1) a loud argument on the street; (2) a political debate in a park; (3) the public interactions of police officers with citizens” … and “(4) any other conversation loud enough to be overheard by others whether in a private or public setting.”  None of these examples implicate privacy concerns – the interest which the law was designed to protect, but would subject the recorder to criminal prosecution.  The court reasoned that the statute burdens substantially more speech than is necessary to serve the interests the statute may legitimately serve and, therefore, is unconstitutional.
In Melongo, a Cook County woman was charged for recording three phone conversations with a court employee and then posting those recordings to her website.  See People v. Melongo, 2014 IL 114852 (March 20, 2014).  Melongo raised a slightly different issue than  the defendant in Clark.  The defendant was charged with not only recording communications without all parties’ consent, but also publishing audio recordings of those communications to her website, which violated the “publishing provision” of the statute.  Relying on the analysis in Clark, the Illinois Supreme Court held that because it had determined that the statutory provision criminalizing defendant’s recording of conversations was unconstitutional, the publication of those conversations can likewise not be unconstitutional because it would amount to a “naked prohibition against disclosure.”  In other words, as applied, the publishing provision makes it illegal to publish all manner of recorded communications, irrespective of any legitimate interest the publisher or public may have.

Conclusion

We expect the Illinois legislature to respond by drafting an updated statute that reflects the ubiquity of small, portable electronic devices in today’s world and responds to the overbreadth concerns raised in the Clark and Melongo opinions.  The impact of any future legislation will be addressed in future posts.

On March 20, 2014, the Illinois Supreme Court held that significant portions of the Illinois eavesdropping statute, 720 ILCS 5/14-1 et seq., (the Statute) violated the First Amendment.  In People v. Clark, 2014 IL 115776, and People v. Melongo, 2014 IL 114852, the court held that the Statute was unconstitutionally overbroad because it prohibited the open recording of public conversations—an aspect of free speech—rather than merely protecting the privacy of non-public conversations, or “conversational privacy,” a legitimate state concern.  On December 30, 2014, then-Governor Pat Quinn signed into law an amendment to the Statute, PA 98-1142, (the Amendment) which narrowed the scope of the law in response to these decisions.  The Amendment limits the Statute’s scope, which includes both civil and criminal penalties, to the surreptitious recording of private conversations and electronic communications.

Even following these changes, Illinois remains an “all-party consent” state, meaning that it is illegal to record private conversations or electronic communications without the consent of every party.  Individuals and entities in Illinois should exercise caution when making any decisions about recording conversations or electronic communications that could reasonably be considered to be private.  In particular, employers or businesses with policies or procedures that address the recording of conversations or electronic communications, even if done in the scope of an investigatory or disciplinary action, should keep in mind the requirements of the recently amended Statute, as well as the eavesdropping statutes of other jurisdictions that might apply, and the potential for civil liability in Illinois.

History of the Eavesdropping Statute

From 1994 to 2014, the Statute—previously one of the strictest eavesdropping laws in the United States—prohibited the recording of any conversation without the consent of all parties involved, whether or not the parties intended the conversation to be private.  This broad prohibition had the effect of criminalizing open recording of public conversations, and it was routinely criticized in the courts and the media.  Opponents launched a series of legal challenges to the Statute on First Amendment grounds.

First, in ACLU of Ill. v. Alvarez, 679 F.3d 583 (7th Cir. 2012), a federal court in Chicago found that the Statute was unconstitutional as applied to an ACLU police accountability program and enjoined the Cook County State’s Attorney from applying the Statute in that instance.  Next, the Illinois Supreme Court, in Clark and Melongo, struck down the main provisions of the Statute as unconstitutionally broad in all circumstances.

While Alvarez, Clark and Melongo all recognized that Illinois could properly protect conversational privacy, each opinion criticized the Statute for failing to distinguish open recording from surreptitious recording, or public discussion from private conversation.  This line of cases effectively left Illinois without an enforceable eavesdropping statute as of March 20, 2014.

Amendment to the Eavesdropping Statute

Alvarez, Clark and Melongo left the door open for the Illinois General Assembly to pass a more tailored eavesdropping law.  Efforts to amend the Statute in this manner began after Alvarez and, after Clark and Melongo, culminated with the passage and adoption of the Amendment.  The most noteworthy changes contained in the Amendment are summarized below.

• “Private” Conversations.  The Amendment only prohibits certain recording of “private conversations,” which the law defines as oral conversations, however transmitted, intended to be private “under circumstances reasonably justifying that expectation.”  The law further defines “reasonable expectation” to “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 United States Constitution.”
• “Surreptitious” Recording.  Additionally, the Amendment only prohibits recording of private conversations “in a surreptitious manner,” which the law defines as “obtained or made by stealth or deception, or executed through secrecy or concealment.”
• Conversations versus Electronic Communications.  In addition to prohibiting the recording of any form of oral communications, the prior version of the Statute prohibited the surreptitious interception, transcription or recording of all other forms of electronic communication, such as e-mail, text messaging or online instant messaging.  The Amendment restructured this prohibition in two ways.  First, whereas the prior version of the Statute defined “electronic communication” as the electronic transmittal of information that the sending and receiving parties intended to be private, the Amendment now defines “private electronic communication” as any such transmittal that either the sending or receiving party intends to be private under a reasonable expectation of privacy.  Second, the Amendment now only prohibits the surreptitious interception, transcription or recording of private electronic communications by a non-party to the communication, whereas the prior version of the Statute contained no such limitation.
• Increased Law Enforcement Powers.  The Amendment expands the circumstances in criminal investigations where a county state’s attorney can authorize the recording of a private conversation where one party has consented to such recording (i.e., when done by a government informant or an undercover law enforcement officer) without a warrant or the consent of the other parties.

Practical Impact

Any individual or entity in Illinois should consider the following points before making recordings and while drafting investigations policies.

• All-Party Consent.  While the Amendment narrowed the Statute’s scope, it did not change the prohibition on recording private conversations or electronic communications without “the consent of all parties.”
• Tightly Defined Exemptions.  The amended Statute still contains certain defined exemptions (such as limited exemptions for consumer hotlines or market/opinion researchers), but those exemptions are limited to highly fact-specific circumstances.  There is no “business reason” exemption or general statutory exemption for non-governmental investigations or disciplinary actions.  In these instances, business and employers must still comply with the requirements of the Statute.
• Recent Media Coverage.  There were strong reactions in press and policy circles after the passage of the Amendment in early December 2014.  However, a number of the initial concerns raised about the Amendment (such as claims that it would criminalize the recording of public police activity or the forwarding of private e-mails) do not appear to be supported by its text.  For example, it does not appear that the Amendment prohibits a recipient of an e-mail from forwarding the e-mail to other parties (even if the sender reasonably intended the e-mail to be private), because the Amendment’s text only addresses the interception, recording or transcription of private electronic communications by a non-party.
• Scope and Constitutionality.  Since the Amendment explicitly refers to reasonable privacy expectations “recognized” or “derived” from other laws, courts applying the amended Statute likely will read the law in the context of how the term “reasonable expectation of privacy” is defined by other courts and in other circumstances.  While the law will no doubt be subject to future constitutional challenges, the Amendment seems to address the main free speech issues raised in Alvarez, Clark and Melongo.
• Access to E-Mails and Other Electronic Communications.  The Amendment broadened the prohibition on the interception, recording or transcription of electronic communications to include situations where only one party intends the message to be private.  Even with this new language, the Amendment still only applies to situations where a non-party intercepts the communications surreptitiously, without consent of the parties, and where a party has a reasonable expectation to privacy in the communication.  Based on case law addressing these concepts in related areas, there is a strong argument that, in certain situations, the Amendment does not prohibit a third party (such as an employer) from accessing an individual’s (or employee’s) electronic communications sent or received on the third party’s platform or servers.  See, e.g., Muick v. Glenayre Elecs., 280 F.3d 741 (7th Cir. 2002) (employee has no reasonable expectation of privacy in employer-provided laptop where the employer had policy known to the employee stating that it can inspect laptops); United States v. Linder, 2012 WL 3264924 (N.D. Ill. Aug. 9, 2012) (employee consents to searches of employer-provided Blackberry when, under company policy, the employee uses the device subject to his or her consent to monitoring).
• Other Criminal and Civil Liability.  In circumstances where a private conversation or electronic communication spans multiple jurisdictions, individuals and entities should consider the potential application of state or federal eavesdropping laws from those jurisdictions.  In addition to the civil penalties provided by the Statute, civil liability also may be implicated under Illinois common law in certain circumstances involving the recording of private conversations or electronic communications.  See Narducci v. Village of Bellwood, 444 F.Supp.2d 924 (N.D. Ill. 2006) (discussing Illinois law regarding invasion of privacy or unlawful intrusion into the seclusion of another).

Conclusion

After the passage of the Amendment, Illinois is still an all-party consent jurisdiction when it comes to recording private conversations or electronic communications.  Any individual or entity in Illinois recording a conversation or electronic communication should carefully analyze the requirements of the amended Statute where an expectation of privacy could reasonably be found.  Businesses and employers in Illinois in particular should consider the requirements of the Statute, as well as the eavesdropping laws of other jurisdictions and Illinois common law, when drafting or reviewing their policies on recording conversations or electronic communications, including policies on conducting internal investigations. source