As one of his last official actions in 2014, outgoing Illinois Governor Pat Quinn signed Senate Bill 1342, which amends the Illinois eavesdropping law that the Illinois Supreme Court found unconstitutional early in 2014. After hearing multiple challenges to what some have called the strictest eavesdropping law in the country, the Illinois Supreme Court directed the State legislature to craft a narrower version of the law that focused on truly private conversations. We addressed these cases in a previous alert in March 2014.

The biggest change redefines eavesdropping. The prior eavesdropping law made it an eavesdropping offense to record others without their consent. Now, an eavesdropping offense only occurs when a person surreptitiously records a “private” conversation. Consistent with the Supreme Court’s decision, the new law defines private conversations as communication “where one or more of the parties intended the communication to be of a private nature under circumstances reasonably justifying that expectation.” The term reasonable expectation is described as any expectation recognized by law, including but not limited to immunity and privilege. The law similarly addresses private electronic communications using the same reasonable expectation standard.

The addition of the requirement that the eavesdropping device be placed, knowingly and intentionally, in a “surreptitious manner” (i.e., by stealth or deception) is also a significant change. This leaves open the question of when a person may openly use a recording device, even where parties do not consent to the recording. These changes undoubtedly narrow the circumstances under which eavesdropping will be illegal as compared to the former version of the statute. In any event, the new law offers some clarity to those who have struggled to define eavesdropping since the Supreme Court struck down the prior law.

For educators and employers, the new law raises many questions about what conversations and meetings are protected by this law. Further questions remain about the extent to which educators and employers can impose restrictions on eavesdropping that exceed this new law without running afoul of the Supreme Court’s 2014 decisions. As we mentioned in our previous alert on this issue, educators and employers may still have the ability to prohibit the recording of conversations, meetings, etc. without the consent of all parties included, as long as those communications meet the reasonable expectation of privacy standard.