Illinois recording law stipulates that it is a two-party consent state. In Illinois, it is a criminal offense to use any device to record communications, whether they’re wire, oral or electronic, without the consent of everyone taking part in the communication. 720 Ill. Compiled Stat. 5/14-2(a)(1). This means that in Illinois, you are not legally allowed to record a conversation you are taking part in unless all parties agree to be recorded.
In December of 2014, the Illinois Supreme Court struck down the statute and amended it to allow recording conversations in areas where there is no reasonable expectation of privacy. It was found that it violated a person’s first amendment rights. This means that the new eavesdropping law is substantially less strict than most other two-party consent states and is more in line with one-party consent states. The new eavesdropping law allows conversations to be recorded without consent in most public areas.
You may not record conversations without the consent of all parties involved in Illinois if there is a reasonable expectation of privacy.
The new eavesdropping statute specifically addresses private conversation’s with a reasonable expectation of privacy. Sec. 14-1 (d) Quote:
“Any oral communication between 2 or more persons, whether in person or transmitted between the parties by wire or other means, when one or more of the parties intended the communication to be of a private nature under circumstances reasonably justifying that expectation. 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 United States Constitution.”
But what does that all mean? Essentially, if one party expects privacy then there is a two-party consent requirement.
This can result in some tricky situations where privacy is ill-defined such as the case of Paul Boron, a 13 year old charged with felony eavesdropping in 2018 for recording a ‘private conversation’ with school administrators that began in the administration’s office and continued in the school officials office with an open door. Does this constitute privacy? Since the door was open and the conversation volume was not consistent with a private conversation, the charges were eventually dropped. However, the fact remains that the teenager was still charged with a felony.
Some Common Situations Where You Would Legally Be Able to Record
An area where there is no expectation of privacy such as a public park.
An area where most patrons can overhear each other such as a loud and busy cafe that does not have any restrictions on making recordings.
A police interaction where you are not interfering with the police officers ability to do their job.
Government officials performing in an official capacity
Private electronic communication where you have requested permission to record
If you believe someone is committing a criminal offense against your or your family you may make a surreptitious recording (secret) if you believe it will provide evidence of the offence.
Some Common Situations Where You Are Not Legally Able to Record
Using an eavesdropping device to secretly record a conversation you are not a part of
An area where most patrons cannot overhear each other and have a reasonable expectation of privacy such as in an intimate restaurant
A place that has signs or rules specifically forbidding recordings
Illinois Video Recording Laws
Illinois audio recording laws are much more stringent than those that affect only video; this allows for some leeway with using surveillance cameras in your residence or outside your home.
With that being said, it is specifically against the law to intentionally transmit live video or record video footage of another person without that person’s consent in:
A restroom, tanning bed, tanning salon, locker room, changing room, or hotel bedroom.
That person’s residence.
That person’s residence through the use of a device that records from outside the residence and transmits from a remote location.
For example, you are not allowed to point your security camera at your neighbour’s house to record inside his or her residence.
720 Ill. Compiled Stat. 5/26‐4(a)‐(a‐6)
It is unlawful to intentionally transmit live video or record video footage through or under a person’s clothing without that person’s consent. 720 Ill. Compiled Stat. 5/26‐4(a-10). Also, the law prohibits the installation of recording devices to record a person without that person’s consent while he or she is in a restroom, tanning bed, tanning salon, locker room, changing room, hotel bedroom or that person’s residence. 720 Ill. Compiled Stat. 5/26‐4(a-15)(a-20)
Recording Phone Calls in Illinois
It can be a bit of a grey area when recording a conversation with someone from a different state, but it is best practice to use the stricter laws. As Illinois is an all-party consent state you should follow Illinois law in all instances of making an audio recording of a telephone call.
If you or a third party requires consent to make a phone call, the FCC allows for multiple methods of gaining consent, such as:
Getting verbal or written consent prior to the recording being made.
A verbal notification being played before the conversation begins. (For example: “This phone call is being recorded for quality control purposes…”).
An audible beep tone being repeated at steady intervals during the duration of the conversation.
Penalties
720 Ill. Compiled Stat. 5/14-4: Infractions against eavesdropping law are considered felonies however first offenses are treated as lighter, Class 4 felonies.
720 Ill. Compiled Stat. 5/14-4(b): Offenses are considered a Class 1 felony punishable by up to 15 years in jail if a recording takes place while a member of law enforcement, assistant’s state attorney or judge are carrying out their duties in public.*
*In 2012, the U.S. Court of Appeals in Chicago (7th Cir.), put the constitutionality of this law up for debate. They decided that parts of Illinois’ Eavesdropping Act are “likely unconstitutional” and that the American Civil Liberties Union of Illinois could not face penalties for recording police activity in the public eye. ACLU of Illinois v. Alvarez, 679 F.3d 583 (7th Cir. 2012).
720 Ill. Compiled Stat. 5/26‐4(d)(1): Installing recording devices in violation of 720 Ill. Compiled Stat. 5/26‐4(a-15)(a-20) and recording through or under a person’s clothing in violation of 720 Ill. Compiled Stat. 5/26‐4(a-10) is considered a Class A misdemeanor which carries an imprisonment of up to 1 year, fines not exceeding $2500 and probation.
720 Ill. Compiled Stat. 5/26‐4(d)(2): Violating video recording laws under 720 Ill. Compiled Stat. 5/26‐4(a)‐(a‐6) is considered a Class 4 felony which carries an imprisonment of 1-3 years, probation and fines of up to $25,000.
720 Ill. Compiled Stat. 5/26‐4(d)(3): Knowingly spreading or permitting the spread of videos and live videos obtained through methods that are in violation of Illinois video recording laws is considered a Class 3 felony which carries an imprisonment of 2-5 years, probation and fines of up to $25,000.
720 Ill. Compiled Stat. 5/26‐4(d)(4): A violation of Illinois’s video recording laws if the victim is under 18 years or if the offender is a person who is required to register as a sex offender is considered a Class 3 felony.
720 Ill. Compiled Stat. 5/26‐4(d)(5): A violation of dissemination laws under 720 Ill. Compiled Stat. 5/26‐4(d)(3) if the victim is under 18 years or if the offender is a person who is required to register as a sex offender is considered a Class 2 felony which carries imprisonment of 3-7 years, probation and fines of up to $25,000.
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