Law murky on recording conversations in Illinois

black and white telephoneJohn Roska recently wrote an article concerning the legal rights of a person recording conversations in Illinois.

There is a federal law that makes it a felony to record “any wire, oral, or electronic communication.”   You can record if the other person knows about it, so we always recommend to our clients that they speak into the recording advice, saying something about the recorder being on, just to protect themselves.  That way the other person can either hang up or continue with the conversation.

The Illinois law now on the books is a “two-party consent” law. everyone in the conversation must consent for any recording to be legal. One person’s consent — the person doing the recording — isn’t enough.

Specifically, the Illinois law says you can’t use “an eavesdropping device for the purpose of hearing or recording all or any part of any conversation,” unless you do it “with the consent of all of the parties to such conversation or electronic communication.”  If convicted, it could mean 1 to 3 years in prison.

But, the Illinois Supreme Court said in two different cases last March that this Illinois law is unconstitutional. In one case, they affirmed the dismissal of criminal charges under the law against someone who recorded their own phone call with a public official.

In the other, they did the same for someone who secretly taped his child support hearing in court, and a conversation with the opposing lawyer out in the hall.

This unconstitutional law hasn’t been amended yet, so it’s still on the books. The fact that it’s been held unconstitutional will probably stop a lot of prosecutors from trying to enforce it, but not necessarily every one.

Since the Illinois Supreme Court favored “one-party consent” recording of conversations, it’s likely that will eventually become the law in Illinois. Even before the recent Supreme Court decisions, several other cases had said “one-party consent” should be the law.

Recording other peoples’ conversations, however, will probably remain illegal.

Generally speaking, federal law applies to interstate conversations, and Illinois law applies to conversations where all parties are here in Illinois. But Illinois law may apply to the Illinois parties to an interstate conversation, and federal to the other. So it’s complicated.

California has a “two party consent” law, like Illinois. The recording that got Clippers owner Donald Sterling in trouble would therefore be illegal — except that the other party to the conversation says he knew he was being recorded.

John Roska is a lawyer with Land of Lincoln Legal Assistance Foundation. You can send your questions to The Law Q&A, 302 N. First St., Champaign, IL 61820. Questions may be edited for space.


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