Eavesdropping, Wiretapping, Video Recording, and Spyware

by Wes Cowell,

14 December 2018 

 

It's okay to video record your spouse as long as you do it openly or have a good reason to do it surreptitiously. Intercepting e-mails and texts is also okay, sometimes.  Need advice?  Call or leave your info, or schedule a consult.

 

Most people think (and dictionaries say) "eavesdropping" means listening in on the conversations of others.  That's what it means in most states, too.  In Illinois, however, it means more than that:  in Illinois, it also means surreptitiously recording your own conversations.  Illinois is an "all-party-consent" state.  You need the other party's permission — or at least the other party's knowledge -- to record a conversation.  Exceptions abound, however, to the point that they almost eclipse the rule; and there even are exceptions to the exceptions.   "Wiretapping" is eavesdropping that takes place over electronic media -- like telephones, text messages, and e-mail.  The law defines both activities as "eavesdropping" and doesn't really distinguish between them. 

 

Felony:  Eavesdropping or wiretapping is a class 4 Felony -- 1 - 3 years in prison and a fine of up to $25,000.

 

Illinois' Old Law:  Illinois law changed in 2014 so, if you're doing research, pay attention.  Eavesdropping is still a crime under 720 ILCS 5/14-1.  The old law made it a crime to record ANY conversation without the consent of everyone being recorded.   Federal law and most states have a "one-party-consent" rule.  Illinois doesn't follow that rule -- Illinois is an "all-party-consent" jurisdiction.  If you recorded your kid at a soccer game and caught the conversation of two other parents . . . you were eavesdropping.  The bulk of that law was (like the bulk of the current law is) directed at preventing citizens from recording or wiretapping the police.  The old law was trying to address a situation where criminal gangs were planting "bugs" in police headquarters to stay abreast of police activity and planned raids.  It was so broad in its reach however, it was used by the police (and state's attorneys and judges) to prevent citizens from recording activity in open places (like, in courtrooms and on city streets). The old law was held unconstitutionally overbroad in People v. Melongo and People v. Clark on 24 March 2014.  The current law allows residents to record interactions with police, for example, but retains the “all-party consent” provisions and introduces a muddy definition of "private conversation."  The law says:

 

"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.

 

Illinois' New Law:  The new law is a lot like the old law but bakes in tons of exemptions.  The new law says:

 

(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 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. Use 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;

720 ILCS 5/14-1

 

Exception:  Open and Conspicuous:  The first exception is if you're open about the fact that you're recording.  Recording your kid at a soccer game, or your spouse in a drunken stupor (or anyone) in public is okay and the recording may be evidence if you're open about it and not doing it surreptitiously,  That's the word the law uses:  "surreptitious." The law defines it:

 

"(g)  Surreptitious.  For purposes of this [law], "surreptitious" means obtained or made by stealth or deception, or executed through secrecy or concealment."

 

So, if you want to record someone and just pull up your phone's video camera and say "I'm recording," there should be no problem.  If the person being recorded says "I don't want you to record me, I don't consent to the recording, and I want you to turn that off;" so what?  Who cares what that person wants?  You're not being surreptitious about it so there shouldn't be a problem.  You can't get all up in their business and harass them -- harassment is a crime.  Openly recording others, even without their consent, however, is okay under Illinois law.

 

Exception:  Obtaining Evidence:  You may record surreptitiously when you reasonably suspect that a crime is about to be committed (or has already been committed) against you or someone in your household.  You have to be a party to this conversation, too.  You don't have to be open about it -- you can be surreptitious -- but you DO have to be part of the conversation.    Here's what the law says:

 

Sec. 14--3.  Exemptions.  The following activities shall be exempt from the provisions of this [law]:

     (i)  Recording of a conversation made by . . . a person . . . who is a party to the conversation, under reasonable suspicion that another party to the conversation is committing, is about to commit, or has committed a criminal offense against the person or a member of his or her immediate household, and there is reason to believe that evidence of the criminal offense may be obtained by the recording.

720 ILCS 5/14-3

 

"Disorderly Conduct" -- Exceptions to the Exception:  (Thanks to noted Chicago divorce attorney, Burton Gross for this insight).  The "open-and-conspicuous" exception doesn't always apply.  Illinois' "disorderly conduct" law (720 ILCS 5/26 et seq.) limits video recording (both "in-person" and with "planted" devices) even if done openly and conspicuously:

 

  1. Not In "Privacy Rooms" Without Consent:  Video recordings, unless consented to, are forbidden in restrooms, tanning salons, locker rooms (news media are exempted) changing rooms, and hotel bedrooms. 

  2. Not Inside Residence Without Consent:  Video recordings of a person inside that person's residence made inside the residence are forbidden unless consented to. 

  3. Not Outside Residence Without Consent:  Video and audio recordings of a person inside that person's residence made from outside the residence are forbidden unless consented to.

  4. No "Up-Skirts" Without Consent:  Video recordings of another "under or through the clothing" are forbidden without consent.

 

Exception to the Exceptions to the Exception:  The audio portion of a video recording allowed under the "obtaining evidence" exception to the Eavesdropping law does not put the recorder in jeopardy of "disorderly conduct."  The law doesn't punish citizens helping to thwart crimes.

 

A few law school-style examples:

 

1.  Wife is in a custody fight with an alcoholic, abusive husband who cleans up nice for court and, to the judge, looks like the world's greatest . . . but Wife knows otherwise.  Husband comes home drunk and angry and Wife knows what's coming because she's been down this road a thousand times.  She turns on her phone's video camera and hides the phone under a napkin on the table and engages Husband in a talk.  In the talk, Husband threatens to beat her and the children, but Wife defuses the situation.  That surreptitious recording doesn't violate the eavesdropping law and will be good evidence in court.  It shows she was a party to the conversation and she reasonably suspected that a crime was about to be committed against her or the kids.  It doesn't matter that she recorded the talk surreptitiously.  It doesn't matter that the crime didn't actually happen.  She's not at risk of a "disorderly conduct" charge.is

 

2.  Wife engages in a pattern of behavior calculated to drive husband crazy to get him to move out of the home.  She destroys his audio equipment and television, keys his car, and cuts holes in his clothes.  She comes into his area of the house uninvited and he turns on the video camera on his phone and surreptitiously places it where it can see everything.  He asks her to leave him alone and she pushes him and tells him she intends to get his childhood baseball card collection out of the attic and burn one card each day he remains in the home.  The recording is good evidence:  the recording was made surreptitiously but he reasonably suspected that a crime was about to be committed against himself and, indeed, the wife pushed him (assault and battery) and she announced her intent to commit another crime (destruction of property).  He is not at risk of a charge of disorderly conduct.

 

3.  Husband learns wife has extra cash and suspects she's doing something illegal.  He turns on his phone's video camera and drops it in his shirt pocket.  He confronts wife who admits she's reconnected with a high school flame who got her back into old habits and she's been dealing drugs on the side.  That recorded conversation is NOT good evidence (and the husband has probably violated the eavesdropping law).  It was made surreptitiously but, although wife admitted to committing a crime, husband did not reasonably suspect a crime was about to be (or had been) committed against him or someone in his household.  If she calls the cops and they find the recording, he may face a disorderly conduct charge.

 

4.  You're invited to your neighbor's holiday party, start recording, and the neighbor asks you to stop.  You persist despite his/her objection.  Disorderly conduct.

 

5.  You're not invited to your neighbor's holiday party and, hurt, you hide in the bushes recording what goes on in the home.  Disorderly conduct.

 

6.  Your spouse drinks himself/herself into a stupor at home but is otherwise civil and law abiding.  You record inside the home and your spouse slurs out the words "please stop recording me in my own home."  You persist.  Spouse calls the cops.  You show them the video.  You face disorderly conduct.

 

7.  You argue with your gangster neighbor.  He invites his "friends" to his house for a get-together.  You reasonably suspect they intend to harm you and your family.  You turn on your phone's video camera, drop it in your pocket, and confront the gang.  They threaten you, reveal some of their intended plans to do you harm and you capture it all.  You SHOULD be on the hook for disorderly conduct.  Thanks to the exception-to-the-exception-to-the-exception (above), however, you're in the clear.  

 

If You Get Caught:  When one spouse eavesdrops or wiretaps the other’s conversations the wiretapper faces jail time (a first offense is a class 4 felony -- second offense bumps it up to a Class 3).  Civil remedies allow the aggrieved party equitable or declaratory relief, recovery of (money) damages and punitive damages, and reasonable attorney’s fees and litigation costs.  Proof can be difficult, however, as an accused wiretapper has defenses at his disposal.  Most commonly, a wiretapper will keep the recordings and not turn them over.  Without recordings, it's virtually impossible to prove the illegal wiretap.  If ordered by a court to turn over the recordings, the wiretapper need not obey as, to do so, would be tantamount to compelling a party to give evidence against himself and a violation of the wiretapper's Fifth Amendment right to not incriminate himself.  In re:  Marriage of Roney, 773 N.E.2d 213, 322 Ill.App.3d 824, 265 Ill.Dec 851 (4th Dist., 2002).

 

Illinois' Computer Tampering Law:  Folks in family court must resist the temptation to hack into their SO's e-mails and data.  Beyond the civil liabilities, hacking is a crime.  Illinois' "computer tampering" law (720 ILCS 5/17-51) has real teeth.  Consider the case of Michael Brummit and Barbara Janisch.  They had been divorced for a decade and were in a fight over child support.  Barbara accessed Michael's e-mail and sent him romantic missives from "Misty."  This caused consternation for Michael and his current wife.  Barbara also sent e-mails FROM Michael's e-mail account to everyone in his contact list.  When the local sheriff's office looked into it, it wasn't hard to figure out that "Misty" was really Barbara Janisch.  She was convicted and sentenced to pay a fine and perform community service.

 

For the wiseacres out there who might claim "I didn't hack my wife's "computer," I hacked her phone; the law covers smartphones and tablets.  It says:

 

"Computer" means an electronic device which performs logical, arithmetic, and memory functions by manipulations of electronic or magnetic impulses and includes all equipment related to the computer in a system or network."

720 ILCS 5/17-52.5

 

Geo-Tracking Devices and "Stalking":  Some facing divorce just want to get information.  One thing they think of is attaching a tracking device to their spouse's car.  It's possible to track a family car and not run afoul of the law.  The law says:

(a-3) A person commits stalking when he or she, knowingly and without lawful justification, on at least 2 separate occasions follows another person or places the person under surveillance or any combination thereof and:

(1) at any time transmits a threat of immediate or future bodily harm, sexual assault, confinement or restraint and the threat is directed towards that person or a family member of that person; or

(2) places that person in reasonable apprehension of immediate or future bodily harm, sexual assault, confinement or restraint to or of that person or a family member of that person.

720 ILCS 5/12-7.3

 

The Federal Wiretap Law:  Federal law (the Electronic Communications Privacy Act of 1986 (ECPA), 18 U.S.C. § 2510-22.) also makes it a crime to eavesdrop or wiretap others.  That law is so thick and convoluted and interwoven with exceptions and exceptions-to-exceptions that I will not go into it much, here.  Two cases are worth knowing, however.  The first is Scheib v. Grant, 22 F.3d 149, 62 USLW 2664 (C.A.7 (Ill.) 1994).  Lynn Scheib and James Grosse divorced in Illinois in 1982.  Lynn was awarded custody.  In 1991 Lynn told James she would remarry and move to Pennsylvania with the child.  James called his lawyers, Burton and Joan Grant.   An agreement was reached in principle that would allow Lynn to take the child to Pennsylvania and James would have extended parenting time for holidays and the summer . . . but the agreement was only tentative and still needed the judge's blessing.  It was summer when the agreement was reached so Lynn moved away and the child stayed with James until the end of summer and a date was scheduled for the court to approve the agreement.

 

During the summer the child called Lynn often.  Those calls were emotionally trying for the child and James decided to find out why.  He used his answering machine to record the calls.  James felt that Lynn was emotionally harming the child and played the tapes for his lawyers.  His lawyers agreed and told the child's Guardian ad Litem.

 

When Lynn's lawyers learned of the recordings a fight started in court, but the parties eventually agreed that they would go forward with the agreement despite James's misgivings.  In the court session where the tentative agreement was finally entered as a court order, Lynn was asked if she intended to sue James under Illinois' wiretap act.  "No," she said, she had no intention of suing James under Illinois' wiretap act for making the recordings.  The order was entered, Lynn moved to Pennsylvania with the child . . . and then Lynn sued James's attorneys in federal court (using the federal law AND the Illinois law) for publishing the recordings James had made.

 

The trial court handed Burton and Joan Grant (James's attorneys) a summary judgment.  The trial court said this wasn't your ordinary "interspousal wiretapping" case (they have a term for it at the federal level:  "interspousal wiretapping").  This case was different.  Here, James wasn't recording Lynn to get dirt on Lynn to use in the divorce; Jame's was recording the child and Lynn was on the call.  The trial court said James's "wiretap" fell within an exemption in the law:  a business exemption for when recordings are made in the ordinary course of business.  As a parent, the court reasoned, part of James's business was knowing what was going on in his son's life and wiretapping your own kid's phone calls is perfectly legal . . . even if it is the other parent on the other end of the line.  If the recordings were legal, then Burton and Joan's publication of the recordings to the G.A.L. was also legal.

 

On the Illinois law, the trial court said that even if James's recording was a violation, the attorneys who published the recordings were protected by an Illinois immunity law.  Lynn didn't like either ruling and appealed, but her appeal failed.

 

The other case is Barry Epstien v. Paula Epstein, No. 14 C 8431.  Barry and Paula Epstein lived in marital bliss . . . until they didn't.  In June, 2007, Paula got ahold of Barry's computer and got into his e-mail system.  She created a "rule" to forward a copy of EACH of Barry's e-mails to her own e-mail account.  Barry's e-mail program dutifully forwarded to Paula a copy of each and every e-mail Barry sent or received.  The program, however, wouldn't forward the copies to Paula until several hours, or sometimes several months or even years, after they had been sent or received by Barry.   Paula received copies of ALL of Barry's e-mails for years.  Things went from bad to worse and in May, 2011 when Paula filed for divorce.  Paula's e-mail scheme stopped in March, 2012.  In October, 2014, Barry's divorce lawyer propounded discovery and asked for "any and all communications, including emails and photographs, that allegedly relate[] to infidelity as alleged by PAULA EPSTEIN . . . ."  Paula told her lawyer about the forwarded e-mails and they were produced in response to Barry's request.  Barry freaked.  Barry sued Paula under the federal law for violating the ECPA and he sued Paula's divorce lawyer for publishing the ill-gotten e-mails (in response to Barry's discovery request -- go figure).  Barry couldn't sue using the Illinois statute because the law had been held unconstitutional and the new law had not yet gone into effect.  The federal court tossed Barry's suit saying that the copy-and-forward effort was hobbled by that delay between the copying and the forwarding and, since the deed wasn't "contemporaneous, "it didn't fall within the definition of "wiretapping."  To add insult to injury, the court held that since Paula didn't violate the federal wiretap act when she obtained the e-mails, her attorney couldn't be punished for publishing them.  Ouch.

 

The Federal Stored Communications Act:  The federal "Stored Communications Act" (18 USC 2701) is essentially an anti-e-mail-hacking law.  It prohibits intentional, unauthorized access to a facility through which data communication is facilitated.  It protects the integrity of ISPs like Google and Yahoo.  So, if your spouse hacks into your e-mail, he or she may be looking at a criminal case bearing a hefty fine and up to a year in prison for a first offense (up to five years for a second offense).

 

The Stored Communications Act also has a civil side:  remedies include actual damages but at least a minimum award of $1,000, punitive damages if the violation was willful are set at a minimum of $10,000, plus attorney's fees and costs.  

 

The Federal Computer Fraud and Abuse Act:  The CFAA (18 USC 1030) is a lot like the Stored Communications Act, except instead of protecting data on ISP servers, it covers a whole bunch of other data on non-ISP servers.  The law was created to protect data on government computers but it expanded to include all computers used "in interstate or foreign commerce or communication."  The CFAA applies to every office and home computer in the U.S.

 

Spyware Under the New Illinois Law:  It used to be that you could get away with some spyware spying.  The old Illinois law had a hang-up about "contemporaneous" spying and the delay between copied e-mails or recorded keystrokes.  Many lawsuits were thwarted by the fact that the information wasn't "spied on" contemporaneously, but was instead saved and transmitted to the spy, later.  The new eavesdropping law, however, is quite clear.  One may not "[i]ntercept, record[], or transcribe[], 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.  720 ILCS 5/14-2(a)(3).  Had this law been on the books when Paula copied-and-forwarded Barry's e-mails, Paula would have been sunk. 

 

Invasion of Privacy:  The legal term-of-art for "invasion of privacy" is "intrusion upon seclusion."  Illinois recognizes the tort.  Lawlor v. North American is a big case that came down from the Illinois Supreme Court that discussed the tort in detail.  Lawlor had worked for North American and had signed a non-compete agreement.  When she left their employment, North American suspected Lawlor was violating the non-compete.  North American hired a private investigator who obtained Lawlor's phone records to check on whom she was calling . . . maybe some of North American's competitors?  Lawlor learned of the P.I.'s phone record grab and sued for "intrusion upon seclusion."  She won.  So if your spouse or former spouse pokes around in your phone records, or opens your mail, call a lawyer to talk about "intrusion upon seclusion."

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