Employers, schools, and other entities have long relied on the Illinois Eavesdropping Act to prohibit individuals from recording conversations, meetings, classes, and other activities without the consent of all participants. Originally, this more-than-50-year-old law prohibited only surreptitious recording of private communications. However, in 1994, the law was expanded also to prohibit, with limited exceptions, the recording of any communication, regardless of whether it was intended to be private, without the consent of all participants. It also prohibited the publication of such communications. Last week, the Illinois Supreme Court struck down the law as unconstitutional, and directed the Legislature to craft a narrower law focused on truly private communications. At this point in time, Illinois law does not prohibit eavesdropping of any kind, although employers and schools likely can continue to prohibit it as a matter of policy or practice, pending action by the Legislature.

The Court’s Decisions

The Illinois Supreme Court’s rulings were unanimous and dealt with twin eavesdropping cases. In the first, State v. Melongo, Annabel Melongo had a dispute with a court reporter over the accuracy of a transcript in Melongo’s criminal case. Melongo was charged with eavesdropping for surreptitiously recording and publishing on her website multiple phone conversations with the court reporter’s supervisor without the supervisor’s consent. In the second, People v. Clark, Deforest Clark was charged with eavesdropping for secretly recording conversations between himself, a judge, and an attorney during a child support case. Both Melongo and Clark challenged the constitutionality of the eavesdropping law.

The Supreme Court agreed with the defendants, and struck down the law. The court noted that it would be legitimate to prohibit recording of truly private communications by individuals not intended by the participants to be privy to them. In such contexts, individuals have a valid interest in the privacy of their communications and a reasonable expectation that they will not be recorded. Moreover, the court reasoned, fear of having private conversations exposed to the public could have a chilling effect on private speech. Where there is no such expectation of privacy, however, the court held it is not legitimate to criminalize recording and publishing communications.

The Supreme Court directed Illinois lawmakers to craft a new law that prohibits only the recording and publishing of communications where there is a reasonable expectation of privacy. The court provided some examples of communications clearly not intended to be private: “a loud argument on the street, a political debate on a college quad, yelling fans at an athletic event, or any conversation loud enough that the speakers should expect to be heard by others.” It is uncertain, however, whether a new law would or could make it a crime for one participant to a conversation to record or publish the conversation without the other participants’ consent. What is certain, however, is that until the Legislature acts, the court’s decision means no eavesdropping activity is criminal in the State.

Impact for Employers and School Districts

The court’s decision and the expected legislative response does not prevent employers and schools from prohibiting the recording of conversations, meetings, classes, and other activities without the consent of all participants. Although employers and school districts no longer may point to the eavesdropping law as a reason for such a prohibition, in most cases the entity will still have authority to prohibit such conduct. For instance, an employer likely can deny a request by an employee to record a disciplinary meeting and likely can refuse to hold the meeting if the employee indicates that he will record the meeting without permission. The same applies to meetings by students and parents in most contexts, although exceptions may apply in the special education realm for K-12 schools, the 504 realm for schools generally, and in other circumstances. If the meeting is a required part of due process or based on a contractual provision for the employee or the student, some alternative opportunity to be heard may have to be provided, but there is still likely a general right to deny a request to record such meetings.

Similarly, educational entities likely still can prohibit students from recording classroom and other school activities, although with similar exceptions for special education, Section 504, and other circumstances as described above. Notably, in those situations other members of a class or other educational environment may have a reasonable expectation of privacy in what is said in the educational context, warranting a prohibition on recording.

There remains a significant amount of uncertainty, though. For example, it is unclear whether, without the robust eavesdropping law in place, employers and schools can successfully exclude evidence of surreptitious recordings of meetings and other activities. Although an employer or school may prohibit an individual from recording a conversation, it has become much easier to record without other parties knowing. We can thus expect to see a continued uptick in the creation of such recordings going forward. If the conduct is not criminal, it may be difficult or impossible to exclude such evidence from legal or administrative proceedings.

Because of the uncertainties in the law, it is advisable to seek legal advice before denying a request to record a meeting or event, before refusing to hold a meeting because a party intends to record the meeting, or when dealing with surreptitious recordings after the fact.