Illinois Laws on Recording Conversations
Illinois is known as a two-party consent state. This means that all parties to a conversation must consent to the recording of that conversation in order for the recording to comply with the law. Consent can be obtained orally or even as part of a contract, but however it is obtained, the individual recording the conversation bears the burden of proving that each participant consented to the recording. Illinois courts have held that the consent requirement applies to both private conversations and electronically transmitted communications.
The two-party requirement imposed by Illinois law does not apply in every case. The consent requirement is relaxed under certain circumstances:
Those operating within the exceptions to the consent requirement must still be aware of other potential pitfalls that landed these exceptions from time to time. For example, the law distinguishes between those situations where communication equipment is used to enhance one’s ability to perceive and those situations in which such equipment is used to collect information about the communication . Thus, a parent recording a phone communication between her child and the neighbor could find herself on the wrong side of the law if she installs a hidden device in the phone or on the line. Likewise, while a recording can be admitted into evidence in a civil or criminal proceeding conducted in the state of Illinois, only courts conducting such proceedings can consent to the use of a recording outside of Illinois. Therefore, an employer may not be able to enter into an enforceable agreement with non-Illinois residents in these situations.
Illinois law provides for both civil and criminal penalties for violation of the statute. Specifically, two years in prison and a $50,000 fine for individuals and a $100,000 fine for corporations for audio or video recording conversations without consent. Civil liability includes actual damages sustained as a result of the violation and punitive damages up to three times the amount of the actual damages (with a minimum of $100), as well as court costs and attorneys’ fees.
Exceptions to the Consent Requirement
In addition to its consent requirement for communications, including in-person meetings, Illinois law provides exceptions to the two-party consent rule. Under the Illinois statutes, consent to eavesdropping is not required under the following circumstances:
- If the recording occurs in a public space (i.e., you are out in public and anyone can overhear the conversation);
- If you are a party to the communication and the recording is for the purpose of obtaining or preserving evidence relating to the commission by any other person of an enumerated unlawful act (a private individual acting in good faith may record with no additional consent necessary);
- If the recording is made for the purpose of patrolling correctional facilities or enjoining inmate activities that violate the law or prison policy;
- If the recording takes place in a place where the person or persons doing the recording may reasonably expect that the communication will not be overheard or recorded, but if the person or persons to the recorded communication are not present at the time of the recording and were not at any prior time given reasonable notice of the recording:
- By any means including both direct personal communication and also by general notification sent by mail or electronic means to all persons who in the prior six months had been in the same place as the recording person;
- By a state or local law enforcement agency;
- By a person who is acting under authority of such law enforcement agency and produces the detecting device or tape recording device for examination by the person upon request; or
- By a person with the consent of a state or local law enforcement officer for purposes of a criminal investigation.
The exception for private individuals acting in good faith only applies to persons who are jointly covered, employed, or elected/appointed together with the other person.
Penalties for Illegal Recordings
Illinois recording laws are relatively strict, especially compared to other states. Jurisdictions that only require one-party consent can create pitfalls for the unwitting, but in Illinois, there are serious risks involved if you’re not careful. Penalties for recording without consent can be severe: Class 3 felonies carry a maximum three year term and Class 4 felonies carry a two-year prison term. Illinois also allows aggrieved parties to sue for damages caused by an illegal recording. Under the statute, you can be liable for punitive damages of actual damages or $1000 per day or $10,000 per day for an ongoing violation, whichever is greater. A plaintiff can also recover costs and attorney’s fees. Furthermore, a plaintiff can seek an injunction to prevent further violations of this law. Keep in mind that any defendant sued under these statutory provisions will also be liable for any sums that a plaintiff’s attorneys charged in pursuing the case. The question of whether the recording was unlawful is generally a question of fact, though a court may dismiss a case in a 12(b) motion if there are no material facts in dispute. The basic issue is whether the plaintiff was in a situation where the plaintiff had a reasonable expectation or privacy. These damages may help a plaintiff recover from the emotional harm that’s caused by an illegal recording and may provide a small amount of justice after the painful realization that someone documented their conversations without consent.
Phone, Video and Workplace Recording
Illinois recording law applies to phone conversations, video, and in-person conversations. Illinois recording law requires all parties involved in a conversation to provide consent to record. Three-party consent laws are generally found in situations where you have a physically present third party that can overhear your conversation. The most common situation is where there’s a phone line involved; if a resident is speaking to someone on the phone, then the communication is being transmitted through a phone line, and anyone listening to a phone call can be involved as a third party in the conversation.
Video is generally treated differently than an audio communication, due to the fact that the act of video recording is "opinionated" in that the person who controls the camera can decide what to focus on, or what to film. In most cases, whether or not a video recording is legal to obtain is based more on whether or not a reasonable expectation of privacy exists than on the actual act of recording what is going on. For example, in a hospital room, if a security camera is recording patients/visitors, then this might be legal. However, if a person is filming someone in their hospital room, this would be illegal, as they may see things on the video that could be reasonably expected to be private. Again, consent to video recordings must be given by everyone in the room in Illinois, even for home video recordings . If you leave a friend’s house and they have a front door camera recording the outside area of their home, even though the camera is on their property, that may be considered illegal to obtain without consent.
If you’re at work, there are many reasons why you might want to record video or audio of what’s going on. As mentioned previously, if you’re located in Illinois and are recording the process of trying to get into a police station, no one will really fault you for setting up video surveillance, and you will probably be well within your rights to do so. However, when it comes to your coworkers, you could easily run into legal trouble. This is because Illinois law states that anyone who has a reasonable expectation of privacy themselves can’t be recorded without their express consent. At work, it’s very easy to run into scenarios where the definition of "reasonable expectation of privacy" can be challenged. Generally speaking, a person probably has an expectation of privacy in a closed office with the door shut, but what about when the door is ajar? What about when you’re in full sight of other co-workers? What about work-related discussions in the breakroom?
The best thing to do if you’re working in Illinois and want to record video or audio for any reason is to either get consent from everyone around you, or to ask a manager or supervisor if it’s okay to record without consent. Even if you have malicious intent or plan to leak the video to the public, you can’t be found liable for any of the damages only because you happened to film when a reasonable expectation of privacy existed.
How Illinois Recording Laws Stack Up
When compared to the one-party consent states, Illinois’ two-party consent law is arguably the most stringent in the country – placing per se criminal liability on an Illinois resident who records a conversation with an out-of-state party as well as on the Illinois-based listeners. The only other state that has a similar law is Connecticut, which also places per se criminal liability on presence-based recording. However, Connecticut courts have not adopted an expansive view in interpreting the Connecticut statute and refuse to import the Illinois standard. Illinois courts, on the other hand, have adopted an expansive view and have imported the presence-based recording standard in interpreting its statute. Therefore, to determine the outcome for Illinois residents recording conversations with people outside of Illinois, one must look to each state’s relevant statutes, case law interpretations, and any common-law precedents pertaining to the law of that state.
Slightly less stringent than Illinois, Georgia and New Hampshire follow a strict receipt-based rule, which subjects the responsible person to liability if he or she fails to obtain consent from the two participating parties. As an example, let’s say a Georgia resident (Georgia resident 1) and an Illinois resident (Illinois resident 1) mutually agree to record their phone call on a personal recording device in Georgia and Illinois. The recorded conversation is then distributed to Georgia resident 1’s office employees and Illinois resident 1’s Illinois corporation – both of which are located in Illinois. In this scenario, each party could be held criminally liable under the laws of Georgia and Illinois, even if the recording was acquired and further distributed in a state that only has a one-party presence-based rule, such as New York.
Somewhat different from the Georgia and New Hampshire rules, Alabama, Massachusetts, Montana, Nevada, Pennsylvania, and Washington require that in addition to having consent from a party, there also be a reasonable expectation of privacy by the obtaining party in order to qualify for either a criminal or civil exemption from liability. For example, assume that a Massachusetts resident (Mass resident 1) and an Illinois resident (Illinois resident 1) mutually agree to record their phone call on a personal recording device in Massachusetts and Illinois. The recorded conversation is then distributed to Massachusetts resident 1’s office employees and to Illinois resident 1’s Illinois corporation – both of which are located in Illinois. In this scenario, Massachusetts resident 1 would be subject to liability under Illinois statute, and could possibly even subject to liability in Massachusetts, if Massachusetts court determined that the recipient employees did not have a reasonable expectation of privacy.
Tips to Help You Comply
When it comes to complying with Illinois recording laws, the best advice is to record responsibly. Here are some practical tips to avoid trouble and ensure compliance with state and federal recording laws:
Obtain Consent One of the safest ways to avoid legal issues involving recording is to obtain consent before filming or recording. For example, consent is required for photographing someone in a place where there is a reasonable expectation of privacy, such as in the bathroom and perhaps even in their own home. It’s also good practice to obtain consent from employees when recording them at work. Company processes should include obtaining consent from workers before you begin videotaping their work-related activities. While Illinois law does not require consent to record in the workplace, the Federal Wiretap Act does. Thus, a hybrid federal-state compliance strategy is recommended for employer recordings. Additionally, consent is required if you plan to film in certain locations , like inside hospitals or in some government buildings. Some municipalities have also passed rules that govern when and how individuals may record in public spaces.
Don’t Record Employees Without Notice Employers should make sure their employees are aware of and understand the company’s policy on recording in the workplace. The policy should provide clear guidance about: – Why the company records; – What the company records; – Who the company records; and – When the company records.
Limit Your Use of Audio It’s wise to be restrictive in recording audio — especially when it comes to people who haven’t consented to being recorded. While many businesses don’t record audio, those who do must ensure they are fully compliant with both state and federal laws.
Educate Employees A sound compliance strategy should include regular employee training on the company’s recording policies as well as periodic reminders about the legal requirements surrounding recording video and audio in the workplace.