Illinois Supreme Court Strikes Down Illinois Eavesdropping Act's Two-Party Consent Provision

Under the Illinois Eavesdropping Act, a person committed a felony when he or she knowingly recorded an individual without that individual's consent, regardless of whether it was reasonable for the individual to have an expectation of privacy in the conversation or not. However, the Illinois Supreme Court recently struck down as unconstitutional the Act’s provision that criminalizes recording without two-party consent. The Court found the two-party consent requirement to be overbroad because it would apply in situations where there was no reasonable expectation of privacy. While this ruling does not mean that an employee (or employer)now has carte blanche to record any and all people in the workplace, employers should understand that employees may now attempt to record workplace actions with increasing frequency, especially as they learn of the ruling on blogs and in other media. Further, employers may have a harder time excluding employee recordings in civil litigation on the grounds that the recording was not lawfully obtained,especially when the circumstances surrounding the recording demonstrate that the individual being recorded had no reasonable expectation of privacy.