Comprehensive Overview (state-by-state) of the Legal Impact of wiretapping:

Illinois

Current status

Illinois has a very restrictive eavesdropping statute. First, with regard to recording private conversations, Illinois is an “all parties consent state”, which means that all parties engaged in a communication must give their consent prior to an interception.

Second, Illinois has a law addressing “unauthorized video recording”, as a means of protecting an individual’s privacy, as opposed to other states that only criminalize voyeurism with emphasis on a sexual context.

Impact of law

Being a party to a private conversation or electronic communication does not entitle a person to record or intercept the conversation or communication, unless he or she has the consent of all parties engaged. There are also restrictions regarding the use or disclosure of information, when the information was obtained in violation of the eavesdropping statute. But most importantly, the state’s eavesdropping statute makes use of the concept of “principal”, defined as a person who knowingly employs or directs another to illegally use an eavesdropping device on his or her behalf. The law sets specific exceptions for parents, step-parents, guardian, or grandparents who monitor their minor children’s communications.

The state’s video recording law strictly forbids recording other persons in their residences, regardless of the placement of the recording device or trespassing on private property.

References to Physical TSCM

In the text of law, an eavesdropping device is defined as any device capable of being used to hear, record, intercept or transcribe communications whether such communication is conducted in person, by telephone, or by any other means. The law specifically references “any device”, “any other means” and other such open terminology, thus we can assert that it is the lawmaker’s intention to cover all available eavesdropping technology.

References to Cyber TSCM

The Illinois law defines “private electronic communication” very thoroughly, as 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, photoelectronic or photo-optical system, when the sending or receiving party intends the electronic communication to be private. This definition endorses the conclusion that lawmakers intended to address any available method of illegal cyber surveillance.

Criminal implications

Under Illinois law, eavesdropping as a first offense is a Class 4 felony and as a second or subsequent offense, is a Class 3 felony. Filming an individual in his residence, without his consent is also a Class 4 felony.

Class 4 felonies are punishable by imprisonment of not less than one year and not more than 3 years[1]. The incarceration period for class 3 felonies is between 2 and 5 years[2].

All felonies are also subject to admissible fines, up to $25,000 for individuals or $50,000 for corporations, in addition to other sentences[3].

Civil implications

Any person whose communications have been illegally intercepted can have a civil cause of action against any and all parties engaged in the eavesdropping action. The plaintiff is entitled to actual and punitive damages against the eavesdropper or his principal, as well as eventual damages against a landlord, owner or operator who aids or permits the eavesdropping.

Code excerpts

Ill. Compiled Stat. Sec. 14-2[4]. Elements of the offense; affirmative defense.

(a) A person commits eavesdropping when he or she knowingly and intentionally:

(1) Uses an eavesdropping device, in a surreptitious manner, 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 other parties to the private conversation

(3) Intercepts, records, or transcribes, in a surreptitious manner, any private electronic communication to which he or she is not a party unless he or she does so with the consent of all parties to the private electronic communication;

(5) 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 this Article, unless he or she does so with the consent of all of the parties.

Ill. Compiled Stat. Sec. 14-1[5]. Definitions.

(a) Eavesdropping device.

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; Provided, however, that this definition shall not include devices used for the restoration of the deaf or hard-of-hearing to normal or partial hearing.

(c) Principal.

A principal is any person who:

(1) Knowingly employs another who illegally uses an eavesdropping device in the course of such employment; or

(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 on his or her behalf.

(d) Private conversation.

For the purposes of this Article, “private conversation” means any oral communication between 2 or more persons, whether in person or transmitted between the parties by wire or 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 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.

(e) Private electronic communication.

For purposes of this Article, “private electronic communication” means 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, photoelectronic or photo optical system, when the sending or receiving party intends the electronic communication to be private under circumstances reasonably justifying that expectation.[…] Electronic communication does not include any communication from a tracking device

(g) Surreptitious.

For purposes of this Article, “surreptitious” means obtained or made by stealth or deception, or executed through secrecy or concealment.

Ill. Compiled Stat. Sec. 14-4[6]. Sentence.

(a) Eavesdropping, for a first offense, is a Class 4 felony and, for a second or subsequent offense, is a Class 3 felony.

Ill. Compiled Stat. Sec. 14-6[7]. Civil remedies to injured parties.

(1) Any or all parties to any conversation or electronic communication upon which eavesdropping is practiced contrary to this Article shall be entitled to the following remedies:

(a) To an injunction by the circuit court prohibiting further eavesdropping by the eavesdropper and by or on behalf of his principal, or either;

(b) To all actual damages against the eavesdropper or his principal or both;

(c) To any punitive damages which may be awarded by the court or by a jury;

(d) To all actual damages against any landlord, owner or building operator, or any common carrier by wire who aids, abets, or knowingly permits the eavesdropping concerned;

(e) To any punitive damages which may be awarded by the court or by a jury against any landlord, owner or building operator, or common carrier by wire who aids, abets, or knowingly permits the eavesdropping concerned.

(3) No civil claim, cause of action, or remedy shall lie against a parent, stepparent, guardian, or grandparent for eavesdropping of electronic communications through access to their minor’s electronic accounts during that parent, stepparent, guardian, or grandparent’s exercise of his or her parental rights to supervise, monitor, and control the activities of a minor in his or her care, custody, or control. This provision does not diminish the protections given to electronic accounts of a minor under any existing law other than this Article.

Ill. Compiled Stat. Sec. 26-4[8]. Unauthorized video recording and live video transmission.

(a) It is unlawful for any person to knowingly make a video record or transmit live video of another person without that person’s consent in a restroom, tanning bed, tanning salon, locker room, changing room, or hotel bedroom.

(a-5) It is unlawful for any person to knowingly make a video record or transmit live video of another person in that other person’s residence without that person’s consent.

(a-6) It is unlawful for any person to knowingly make a video record or transmit live video of another person in that other person’s residence without that person’s consent when the recording or transmission is made outside that person’s residence by use of an audio or video device that records or transmits from a remote location.

(a-15) It is unlawful for any person to place or cause to be placed a device that makes a video record or transmits a live video in a restroom, tanning bed, tanning salon, locker room, changing room, or hotel bedroom with the intent to make a video record or transmit live video of another person without that person’s consent.

(a-20) It is unlawful for any person to place or cause to be placed a device that makes a video record or transmits a live video with the intent to make a video record or transmit live video of another person in that other person’s residence without that person’s consent.

(d) Sentence.

(1) A violation of subsection (a-10), (a-15), or (a-20) is a Class A misdemeanor.

(2) A violation of subsection (a), (a-5), or (a-6) is a Class 4 felony.

(e) For purposes of this Section:

(1) “Residence” includes a rental dwelling, but does not include stairwells, corridors, laundry facilities, or additional areas in which the general public has access.

(2) “Video record” means and includes any videotape, photograph, film, or other electronic or digital recording of a still or moving visual image; and “live video” means and includes any real-time or contemporaneous electronic or digital transmission of a still or moving visual image.

 

 

[1] Source: http://www.ilga.gov/legislation/ilcs/fulltext.asp?DocName=073000050K5-4.5-45

[2] Source: http://www.ilga.gov/legislation/ilcs/fulltext.asp?DocName=073000050K5-4.5-40

[3] Source: http://www.ilga.gov/legislation/ilcs/fulltext.asp?DocName=073000050K5-4.5-50

[4] Source: http://www.ilga.gov/legislation/ilcs/fulltext.asp?DocName=072000050K14-2

[5] Source: http://www.ilga.gov/legislation/ilcs/fulltext.asp?DocName=072000050K14-1

[6] Source: http://www.ilga.gov/legislation/ilcs/fulltext.asp?DocName=072000050K14-4

[7] Source: http://ilga.gov/legislation/ilcs/fulltext.asp?DocName=072000050K14-6

[8] Source:

http://www.ilga.gov/legislation/ilcs/fulltext.asp?DocName=072000050K26-4