Late last month, the Illinois Supreme Court essentially gutted the state’s long-standing eavesdropping law, placing the state into an unprecedented “no-mans-land” for the recording of private conversations. In two separate unconsolidated opinions, the Court found that the law violated the First Amendment of both the Illinois and U.S. Constitutions, as well as the public’s due process rights. In overturning the law, anyone in Illinois can – for now – surreptitiously record a private or public conversation between two or more people without fear of criminal prosecution. This is a standard at odds with every other state in the country, and one which should concern Illinois corporations and employers.

Prior to the Court’s rulings last week, the law criminalized knowingly and intentionally recording any oral communication, whether public or private, without the consent of all parties involved. See 720 ICLS 5/14-2(a) et seq; 720 ILCS 5/14-1(d). It also criminalized the recording, use, divulging or publishing of any information obtained by using an eavesdropping device (e.g. cell phones, PDAs, iPads, mini-recorders, phone-tapping devices, etc.). 720 ICLS 5/14-2(a). In invalidating the law, the Illinois Supreme Court found that, while it protected private speech from being surreptitiously recorded, the state’s “general ban on audio recordings of any oral communication whatsoever” was a step too far to withstand constitutional muster. People v. Clark, 2014 IL 115776 at Para. 21 (Ill., Mar. 20, 2014). The Court noted that the act was so broad that it inappropriately criminalized the recording of conversations that were clearly public, such as a “loud argument on the street,” “the public interactions of police officers with citizens,” or “any conversation loud enough that the speakers should expect to be heard by others," and thus found the statute “unconstitutional on its face because a substantial number of its applications violate the First Amendment.” People v. Melongo, 2014 IL 114852 at Para. 31 (Ill., Mar. 20, 2014). In finding the recording provisions of the law unconstitutional, the “publishing provision” was also necessarily unconstitutional. Melongo, 2014 IL 114852 at Para. 34-35, quoting Bartnicki v. Vopper, 532 U.S. 514 (2001).

Illinois is now in the unique position of having no applicable law governing the recording and distribution of conversations otherwise intended to be private, leaving Illinois and companies to blindly navigate the no-mans-land the Melongo and Clark decisions have left in their wake. Without a threat of criminal sanctions for secretly recording private conversations, individuals, managers and corporate officers should be careful what they say in such settings. For example, it is unclear whether, without a robust eavesdropping law, employers can successfully exclude evidence of a surreptitious recording of meetings, which technology has made easy, and other activities from administrative and court proceedings. A company that does not currently have a policy prohibiting the secret recording of conversations would be wise to develop one to help ensure the maintenance of privacy where it is intended; companies with operations in multiple states should consider reviewing their existing policies to ensure they are strong enough to handle the state of the law in Illinois.

While the Court predicted that a new law prohibiting the recording of truly private conversations would likely withstand constitutional muster, it is now up to the legislature to decide what such a law will look like. At least one Illinois General Assembly member announced last week that she was interested in drafting a new, narrower law in light of these decisions – but with Illinois in the middle of a heated election year, it is highly unlikely the legislature will act until January 2015 at the earliest. We will continue to monitor any developments should the legislature or the courts address these issues.