Illinois Eavsdropping

The Law – 720 ILCS 5/14 et seq.

A person commits Eavesdropping when he or she knowingly and intentionally:

  1. Uses an eavesdropping device, in a surreptitious manner, for the purpose of overhearing, transmitting or recording all or any part of any private conversation to which he or she is not a party unless he or she does so with the consent of all of the parties to the private conversation;

  2. OR

  3. Uses an eavesdropping device, in a surreptitious manner, for the purpose of transmitting or recording all or any part of any private conversation to which he or she is a party unless he or she does so with the consent of all other parties to the private conversation;

  4. OR

  5. Intercepts, records or transcribes, in a surreptitious manner, any private electronic communication to which he or she is not a party unless he or she does so with the consent of all parties to the private electronic communication;

  6. OR

  7. Manufactures, assembles, distributes or possesses any electronic, mechanical, eavesdropping, or other device knowing that, or having reason to know that, the design of the device renders it primarily useful for the purpose of the surreptitious overhearing, transmitting or recording of private conversations or the interception or transcription of private electronic communications and the intended or actual use of the device is contrary to the provisions of the Eavesdropping law;

  8. OR

  9. Uses or discloses any information which he or she knows or reasonably should know was obtained from a private conversation or private electronic communication in violation of the Eavesdropping law, unless he or she does so with the consent of all of the parties.

In 2014, the Illinois Supreme Court ruled that the Eavesdropping law in effect at the time was unconstitutional as it ran afoul of First Amendment and Due Process guarantees. As a result, in 2016, the Illinois General Assembly passed a new Eavesdropping law that is in place today. The law in place today puts Illinois in the minority by making it a “two-party” consent state (i.e., all parties to a communication must consent to the communication being recorded).

Moreover, the new law clears up some confusion as to recordings of individuals/communication out in the open. The current Eavesdropping law protects only those communications where the parties do not possess a reasonable expectation of privacy. This means, for example, a conversation between individuals out on a busy sidewalk will generally not be subject to the Eavesdropping law and, therefore, can be lawfully recorded.

The law not only covers oral communication between individuals, but includes electronic communication as well. This would mean that text messages between individuals would be protected by the new Eavesdropping law. Of note in the Eavesdropping law is that any recording of a conversation wherein the individuals who are parties to that conversation possess a reasonable expectation of privacy must be “surreptitious” to constitute a crime. Under the law, surreptitious is defined as recordings or interceptions made by stealth or deception, or executed through secrecy or concealment.

Finally, the law makes any recording or interception of communication in violation of this law inadmissible in any civil or criminal proceeding under most circumstances, unless all parties consent to the recording or interception of the communication.

The Sentence

CLASS 4 FELONY FOR FIRST OFFENSE

  • 1 to 3 years in state prison

  • Fine of up to $25,000

Probation Possible? – Yes.

Supervision Possible? – No.

CLASS 3 FELONY FOR SECOND OR SUBSEQUENT OFFENSE

  • 2 to 5 years in state prison

  • Fine of up to $25,000

Probation Possible? – Yes.

Supervision Possible? – No.

OR

If the eavesdropping is of an oral conversation or an electronic communication of any law enforcement officer, State's Attorney, Assistant State's Attorney, the Attorney General, Assistant Attorney General, or a judge, while in the performance of his or her official duties.

CLASS 3 FELONY FOR FIRST OFFENSE

  • 2 to 5 years in state prison

  • Fine of up to $25,000

Probation Possible? – Yes.

Supervision Possible? – No.

CLASS 2 FELONY FOR SECOND OR SUBSEQUENT OFFENSE

  • 3 to 7 years in state prison

  • Fine of up to $25,000

Probation Possible? – Yes.

Supervision Possible? – No.

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James A. Payonk, Jr.

~ Attorney at Law ~

10705 W 159th St.
Orland Park, Illinois 60467

(708) 633-6005