In the May 2014 edition of the Family Law Section Newsletter, I wrote about the Illinois Supreme Court case of People v. Clark, 2014 IL 115776. In Clark, the Supreme Court declared parts of the Illinois Eavesdropping Statute (720 ILCS 5/14-1, et.seq.) unconstitutional on First Amendment grounds. The legislature was quick to respond and on December 30, 2014 Governor Quinn signed SB 1342 which contains the new Illinois Eavesdropping Act (“new statute”). This article will summarize the revisions to the Eavesdropping Statute contained in the new statute as they pertain to the practice of family law.
The Clark decision was a real “Back To The Future” moment. Clark held that the Eavesdropping Statute, as then written, was overbroad and unconstitutionally infringed on protected speech. Clark required that before the recording of a conversation can be considered a crime, there must be a realistic expectation of privacy surrounding that conversation. Clark essentially reaffirmed the Court’s prior holdings in People v. Beardsley, 115 Ill.2d 47 (1986), and People v. Herrington, 163 Ill.2d 507 (1994). After the Herrington decision, the legislature amended the statute and specifically removed the expectation of privacy requirement of a protected conversation.
According to the new statute, a party to a conversation commits the offense of eavesdropping as follows:
(720 ILCS5/14-2) (a) A person commits eavesdropping when he or she knowingly and intentionally:
(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 other parties to the private conversation.
At first blush, the language of the new statute seems no different than the statute found unconstitutional in Clark. However, the difference between the new statute and its predecessor is found in the definitions. In this case the key is the legislature’s definition of the new term “private conversation”. “Private conversation” is defined in the new statute, 720 ILCS 5/14-1(d), as:
“any oral communication between 2 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 of privacy shall include any expectation recognized by law, including, but not limited to, an expectation derived from a privilege, immunity, or right established by common law, Supreme Court rule, or the Illinois or United States Constitution.”
The Court in Clark, Herrington, and Beardsley specifically found that there can be no expectation of privacy by the declarant where the individual recording the conversation is a party to that conversation. Until the Supreme Court reverses itself on this issue and changes the common law, a party to a conversation has no expectation of privacy under the new statute.
The new statute states that “Surreptitious” means “obtained or made by stealth or deception, or executed through secrecy or concealment.” A cell phone in your client’s pocket would probably be considered surreptitious. A cell phone sitting on the kitchen counter may be an entirely different kettle of fish. If a party can show that the recording of a conversation was not “surreptitious”, the question of “expectation of privacy” becomes moot. However, since most conversations carry no expectation of privacy, the question of surreptitious or non-surreptitious seems irrelevant.
The new statute returns us to the state of the law prior to the 1994 amendments to the Eavesdropping Act. As I stated in my May 2014 article, we are in a new world of “speaker beware.” As lawyers, we must advise our clients that anything they say to their spouse, or someone they do not trust absolutely, may resurface at an inopportune moment in their divorce case. As a lawyer on the other side of the case, an obstacle to the admission of relevant information has been lifted. All family law practitioners need to be familiar with the provisions of the new statute as it has a potentially significant impact on our practices.
Kirsh, Matthew A., Eavesdropping In Illinois: An Update. ISBA Family Law Section Newsletter. January 2015.