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Illinois Enacts New Eavesdropping Statute (Monday, February 9, 2015)

Public Act 098-1142 created the new Illinois eavesdropping statute. The law restores the requirement in the former law that all parties to the communication agree that it may be recorded.
 
DEFINITIONS
 
An eavesdropping device is any device capable of being used to hear or record oral conversation or intercept, or transcribe electronic communications, whether such conversation or electronic communication is conducted in person, by telephone, or by any other means. This definition does not include devices used for the restoration of the deaf or hard-of-hearing to normal or partial hearing.
 
An eavesdropper is any person, including any law enforcement officer and any party to a private conversation, who operates or participates in the operation of any eavesdropping device contrary to the Act or who acts as a “principal.”
 
A “principal” is any person who:
  1. Knowingly employs another who illegally uses an eavesdropping device in the course of such employment; 
  2. Knowingly derives any benefit or information from the illegal use of an eavesdropping device by another; or
  3. Directs another to use an eavesdropping device illegally.

A “private conversation” is any oral communication between two or more persons, whether in person or transmitted between the parties by other means, when one or more of the parties intended the communication to be of a private nature under circumstances reasonably justifying that expectation. A reasonable expectation includes any privacy expectation recognized by law. 
 
Finally, a “private electronic communication” is any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or part by a wire, radio, pager, computer, electromagnetic, photo electronic or photo optical system, when the sending or receiving party intends the electronic communication to be private under circumstances reasonably justifying that expectation. A reasonable expectation includes any expectation recognized by the law.
 
VIOLATION OF THE ACT
 
A person commits eavesdropping when he or she knowingly and intentionally:
  1. Uses an eavesdropping device, 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. 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 parties to the private electronic communication. 
  3. 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 law, unless he or she does so with the consent of all parties.

BUSINESS MONITORING
 
There is a limited exemption for certain businesses, including a corporation or other business entity engaged in marketing or opinion research, or a corporation or other business entity engaged in telephone solicitation.
 
“Telephone solicitation” is a communication by live operators soliciting the sale of goods or services; receiving orders for the sale of goods or services; assisting in the use of goods or services; or engaging in the solicitation, administration, or collection of bank or retail credit accounts.
 
“Marketing or opinion research” is a marketing or opinion research interview conducted by a live telephone interviewer engaged by a corporation or other business entity whose principal business is the design, conduct, and analysis of polls and surveys measuring the opinions, attitudes, and responses of respondents toward products and services, or social or political issues, or both.
 
Such businesses may record or listen to oral telephone solicitation conversations or marketing or opinion research conversations when: 
  • the monitoring is used for the purpose of service quality control of marketing or opinion research or telephone solicitation, the education or training of employees or contractors engaged in marketing or opinion research or telephone solicitation, or internal research related to marketing or opinion research or telephone solicitation; and
  • the monitoring is used with the consent of at least one person who is an active party to the marketing or opinion research conversation or telephone solicitation conversation being monitored.
Business entities that use a telephone monitoring or telephone recording system must provide current and prospective employees with notice that the monitoring or recording may occur during the course of their employment. The notice must include prominent signage notification within the workplace.
Business entities that use a telephone monitoring or telephone recording system must also provide their employees or agents with access to personal-only telephone lines, which may be pay telephones, which are not subject to telephone monitoring or telephone recording.
 
EAVESDROPPED COMMUNICATIONS MAY NOT BE ADMISSIBLE IN EVIDENCE
 
No eavesdropped communication or conversation may be admitted as evidence in a civil or criminal trial or any administrative or legislative inquiry or proceeding. However, if all parties have agreed, a private conversation or private electronic communication may be admitted into evidence.
 
PENALTY FOR VIOLATION
 
A first eavesdropping offense is a Class 4 felony. A second or subsequent offense is a Class 3 felony.
 

· Michael R. Lied
· Howard & Howard Attorneys PLLC
· One Technology Plaza, 211 Fulton Street, Suite 600, Peoria, IL 61602
· (309) 999-6311
· MLied@howardandhoward.com

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