Is it illegal to record a private telephone conversation?
Los Angeles Clippers owner Donald Sterling had long been known for allegedly racist treatment of residents in his Los Angeles housing projects. However, it wasn’t until a taped conversation was leaked in which Sterling made racist comments about his assistant’s interaction with black men at Clipper’s basketball games that Sterling’s racism, and eavesdropping law, were brought to the forefront of the public eye. Because the tapes were leaked, the damage cannot be undone to Sterling’s reputation. However, the key issue in regard to the legality of the tapes is whether they were done with or without Sterling’s consent.
Prior to this ongoing saga, chances are that nobody knew California was a two-party consent state and it is almost certain that nobody knew what rights they had in their own state. When it comes to recording conversations and eavesdropping law, Illinois has long been a two-party consent state like California. That means that any conversation, public or private, could only be recorded if both parties in the conversation gave their consent. So just like the Sterling case, it would be illegal for someone to tape your private conversation without your consent.
While the two-party rule may seem to make sense as a great way to protect individual rights to privacy, the state of Illinois has recently undergone a change. At the end of March, the state Supreme Court struck down the decades old two-party consent rule for being overbroad and unconstitutional on the grounds that it violated the First Amendment rights to free speech and criminalized activity that wasn’t meant to be criminal. For example, the Court reasoned that the statute made illegal recording conversations like public political debate or a loud argument in the street without consent from all parties and that was not the intention of the law.
So what does this mean for Illinois residents? Until the legislature has the chance to come up with a new statute that better encompasses criminal and non-criminal behavior, we are to rely on Federal Law and state civil liability regarding invasion of privacy. Essentially, until a statute is passed, Illinois has become a one party consent state where all public and some private conversations can be recorded as long as one party consents and there is no clear invasion of privacy. Assuming one of the participants in the conversation is the one recording it, this opens the door to a broad new scope of eavesdropping possibilities leaving people to wonder if a “private conversation” really still exists. So unless you are in your own home having a conversation you know to be private, this change in law should cause even the most careful speaker to watch what they say and to whom they say it.
Daliah Saper was interviewed by Fox News about the Illinois Eavesdropping Statute last year, before the law was struck down:
