Legality of Recording in Illinois

Illinois Law Regarding Recording Conversations

Illinois is one of a minority of states in the U.S. that prohibit any and all recording of conversations, unless all involved parties consent to the recording. This is known as an "all-party consent" or "two-party consent" recording law. The relevant statute is 720 ILCS 5/14-2(a)(1), which reads: "A person commits eavesdropping when he or she knowingly and intentionally uses an eavesdropping device to overhear or record all or part of any conversation…unless he has the consent of all other parties to the conversation."
The scope of the Illinois eavesdropping law extends to recording over the phone, in person conversations, and also to more modern forms of recording (text messages, emails, etc.) It essentially prohibits recording anything that is part of a "conversation;" i.e., by definition it’s illegal to record your babysitter’s phone call with your neighbor without consent simply because it’s not a directly between you and her.
The law imposes severe penalties for violating its terms, including a Class 1 felony – which can entail prison time of up to 15 years in certain circumstances, as well as increased penalties for repeat offenders. However, unfortunate case law further diminishes the potential deterrent value of these possible penalties by offering judges significant leeway when it comes to sentencing. In People v . Beitscher, 2014 IL App (2d) 130133, decided by the Court of Appeals of Illinois in May 2014, a defendant who taped Vice-President Biden during a visit to NIU received a mere $250 fine. However, the potential for severe penalties still remains in the law. Therefore, Illinois residents should be sure to have the consent of all parties before recording any conversation.
In recent years, the Illinois General Assembly has introduced some changes to the law governing the recording of conversations in the state.
One such change is that Illinois courts may now sentence a convicted eavesdropper to mandatory home confinement. Illinois Public Act 99-378 amended 720 ILCS 5/14-2(d) to include that: "The court may impose a sentence of home confinement for up to 18 months for a violation of this Section and shall consider imposing such a sentence as an alternative to a sentence of imprisonment. If the court imposes a sentence of home confinement, it shall impose a fine of not less than $25 for each day of home confinement." Previously, judges lacked the authority to impose home confinement.
In 2013, the Illinois General Assembly passed a resolution condemning the practice of creating a false privacy exemption for those who seek to surreptitiously record or transmit private conversation by publicly posting signs advising of enhanced privacy at locations where the conversations take place.

One-Party Consent or Two-Party Consent

As for consent, many states, such as Florida, require what is known as "two-party" or "all-party consent" to record a conversation. This means that both parties must effectively give consent to have a conversation recorded, and if you try to record a conversation without the other party knowing, you can be sued or even prosecuted criminally. Other states require "one-party consent" – if one party has consented to the recording, then the other party does not have to know or consent to being recorded. The difference is generally speaking, the more people who are present and can hear the conversation (whether in-person or on the telephone), the more likely it is the court will apply all-party consent laws. Conversely, if you and an acquaintance are talking for a while on the phone, the court is less likely to find that the one-party consent rule applies. Illinois is a two-party consent state. Under the Illinois Eavesdropping Act, "It shall be unlawful for any other person to use any device for eavesdropping or monitoring or to disclose the contents of any other eavesdropping or monitoring of a private conversation by any device." (720 ILCS 5/14-2). In other words, as long as you are in Illinois, unless you are authorized to tape-record conversations by a law enforcement officer, you must first obtain the consent of the other person to date the conversation. Consent is not required if the publisher or offeror party to the communication is present (but not monitory) at the same time as the intercom system, from which the communication is published or disseminated. The penalty for secretly tape recording in Illinois is steep; upon conviction, you could either receive (i) a fine, (ii) imprisonment, or (iii) both. In addition to these penalties, you could face charges from the person whom you recorded in the form of a civil suit (See e.g., 740 ILC 115/15). Many companies have become cognizant of the implications involved with tape recordings and thus require that you do not tape any phone conversations or attend meetings with recording devices.

Penalties for Illegal Recording

Illinois law provides for strict penalties for violations of its recording laws. Under 720 ILCS 5/14-2, any person found guilty of illegally recording a conversation may face criminal prosecution, which can result in class 4 felonies and fines of up to $50,000 for each individual occurrence. Exemptions exist for law enforcement officers carrying out their duties, as well as a few other select categories of persons, including judges, certain law clerks, members of the General Assembly, and individuals conducting research or statistical studies, who have received prior consent to record the conversation.
Participants on both sides of the conversation also have cause for complaint if they object to recording. According to 720 ILCS 5/14-3, the penalties for violations of the recording law extend to parties who did not participate in the recording, but were participants in the conversation. These parties may file civil and criminal actions against the perpetrator.
Criminal penalties include an order to pay between $1,000 and $10,000 into court, followed by penal custody in the county jail or in a work or study release program operated by the Illinois Department of Corrections for up to 30 days. To be eligible to serve time in a work or study release program, the defendant must be sentenced to a term of probation. The defendant must reimburse domestic violence shelters who are entitled to recover costs incurred in assisting the victim and his or her family, for example, if he or she has to move from his or her domicile, is unable to maintain employment, or has incurred medical expenses. If the defendant is a public employee and the offense occurred during the performance of his or her work duties, he or she will be suspended or removed from office.

Recording Exemptions from the Law

There are a couple of recognized exceptions to Illinois’ all-party consent requirement for recording. Not many, however, so don’t think that you have a free pass to just hit "record."

1) If the recorded communication is done by a party (e.g., spouse) to an audio or video "surveillance or broadcast transmission," 720 ILCS 5/14-2(a) the communication is legal and any punishment for recording is not applicable.

Surveillance can be legal where a device is used to capture an image, picture, or likeness of a person without audio, and the use of the device is common in or on a dwelling.

2) If the recorded communication is "transmitted by any employee, servant, agent, or representative of any governmental entity in the course of his or her employment," 720 ILCS 5/14-2(b) the communication is legal and there is no criminal violation that would come into play.

In this scenario the employee, servant, etc. must be in "the course of his or her employment, warrantless" and "acting under color of law."
In other words, if the employee, servant, agent , or representative is listening to your conversation in the coffee shop you will have a cause of action for coercive eavesdropping against the government entity.

3) If the recorded communication does not involve a private communication between two private parties. Such communications include:

Making a workers compensation claim;
Dispute resolution hearings at an administrative agency, in Chaney v. Singelton, 2000 WL 1210434, at *1 (N.D.Ill. July 26, 2000); and
"where at least one party to the communication was aware that their communication would be recorded, so long as the party that had knowledge of the recording consented. Id. at 8; 18 U.S.C. §2511(2)(d) ("It shall not be unlawful under this chapter for a person- (i) … to use that information in the ordinary course of its business or. . .)." Id.; People v. Beaman, 229 Ill.2d 56, 78, 891 N.E.2d 967, 982, 322 Ill.Dec. 506 (2008).
The definition of a private conversation under the statute has shifted from a two-party conversation to a four-party conversation.
So unless you find yourself in a unique situation where you can rely on an exception to the law, you are required to get the consent of all parties if you plan to record. Always be on alert to what the "walls" are constructed of when it comes to recording a conversation.

Recording Conversations: Real-Life Applications

Here are some of the most common scenarios where one might question whether it’s legal to record a conversation:
Scenario 1 – Home
I am standing on my front porch, and I can hear my neighbor yelling and screaming at his girlfriend. There are children in the home; I fear for their safety. Can I record these conversations?
Scenario 2 – Public Space
I am having lunch outdoors in a busy street, and I overhear two men talking about committing a robbery. Can I record the conversation?
Scenario 3 – Workplace
My boss called me into her office and yelled at me because I made a mistake on a project. Due to my hearing impairment, I would like to record the conversation for my own use. Is this legal?
Scenario 4 – Workplace
My boss called another employee and me into his office for a performance evaluation. He told us we are both going to be fired. While he was talking, I used my phone to record the conversation. My friend and I went back to our desk and sent the recording out to everyone in the office. The next day, our employer called us into his office and told us we had been terminated. Are we going to get in trouble for this?
Scenario 5 – Healthcare
My mother is in a rehabilitation center due to a stroke. We are meeting with her doctors to discuss her care. My brother wants to record the meeting. Can he do so?

How to Record a Conversation Lawfully

Before making the recording, get consent to record not just from the person you are recording but from the person who is part of the conversation. The law is very clear on this: If you are in Illinois and you are in a conversation with someone else, you need the consent of the person you are recording and the third-party who is part of the conversation.
For example, if you are having dinner with someone and want to also record a conversation between two other people, you’ve got to get consent from all three of you. Yes, it’s a pain in the rear, but the results of not doing it are worse.
If you work for a company that has any sort of policy that prohibits recording in any form or fashion, we would suggest talking to an attorney about this to either help you make the right decision and/or an attorney to help you determine your right to tape and advise you as to whether the company’s policy is lawful in the first place.
As a worst case scenario , you could face civil liability. Under Illinois’ eavesdropping statute, you could be required to pay actual damages of at least $100, plus punitive damages (up to $10,000) for listening in on a conversation to which you are not a party, or otherwise illegally intercepting the communication.
In addition or alternatively, a judgment could prevent you from further participation or disclosure of the recorded conversation and could be imposed for any possible "losses" suffered by the party whose conversation was recorded.
So what this boils down to is that you cannot be listening to a conversation that you are not a party to and then secretly recording a phone call and hoping for the best.