Illinois Video Recording Laws, Explained
The legal framework governing video recording in Illinois is primarily governed by several key statutes and regulations. Notably, the Illinois Compiled Statutes Title 720 Chapter 5 Section 26 (Section 26-4) regulates eavesdropping and the use of data recording devices.
This law broadly prohibits the recording of conversations without the consent of the person being recorded. This includes conversations in which one or both parties to the communication are in Illinois, including those that take place in Illinois over the internet (i.e., by email or video streaming). For those who are video streaming in a non-invasive manner, and so long as the camera is not aimed directly at a person (i.e., in a common area not expected for private conversation), then Illinois law might not require obtaining consent from the people shown on video.
In addition to Section 26-4, the Illinois Recording of Communications Act (Section 14-1) provides additional context in regards to internet and telephone electronic communications, while also defining the term "communication . " The definition of "communication" is notably broad in nature as it encompasses transmissions made by "any method or medium presently in use or designed for future use," including telephones, emails, and others. As such, there may be instances where the recording of online video communications may be restricted under Section 14-1, depending on other facts and circumstances.
Another possible point of concern relates to the Federal Wiretap Act, which is part of Title 18 of the United States Code. Under 18 U.S.C. Section 2511(2)(d), computer service providers (as defined by the Federal Wiretap Act) are prohibited from intentionally capturing, obtaining, or altering a wire, oral, or electronic communication or any information contained in it. This may result in a duty to delete third-party images unintentionally captured in a public area; in some cases, email would be governed by Section 14-1; however, this would likely include, at a minimum, telephone calls.
Requirements for Consent
For any individual creating or using a video recording device to gather information or make records for personal or business use, or as part of a newsworthy event (for example, what a journalist might use to report on a protest in front of a government building), understanding consent requirements in Illinois is crucial. Illinois uses an all-party consent rule, as opposed to most other states, which require only one-party consent. The Wiretapping Act is the primary law governing this kind of recording and reporting. Violators may be found guilty of a Class 4 felony. Because this presents a clear barrier to legal recording, dispensations have been provided to specific groups. Those groups include people involved in a court proceeding, such as a judge; a party to a conversation if he or she has given prior consent to all parties; a law enforcement agent who has received all necessary permissions required by state and federal law; and in the course of a fully recorded business proceeding, such as a meeting where everyone is aware of recording and OK with it.
Where You Can and Can’t Record in Illinois
In the Illinois Supreme Court opinion People v. Beining, the Court noted that "the analysis for recording in a public place is quite different from audio recording in a place where there is a reasonable expectation of privacy, under both the Fourth Amendment and the [Illinois eavesdropping Act]." Beining, 2018 IL 122197 *23. In other words, there’s less of an expectation of privacy in public versus private settings and the Illinois Supreme Court has upheld video recording of police officers who were "in the performance of their duties in areas open to the general public" and knew or should have known they were being filmed. People v. Clark, 2018 IL 121933 *18.
While we are not aware of any Illinois appellate decision reconciling People v. Clark or Beining with the First Amendment, Section 14 of the Illinois eavesdropping Act, or the Illinois Privacy Act, we would anticipate that at least some of the difference of outcome would come down to whether or not a reasonable expectation of privacy exists in the particular setting sought to be recorded.
For example, in the PACER case, an individual recorded statements made at a public hearing, in which he appeared as an interested party; the appellate court held that the he was then "not subject to criminal prosecution for the unauthorized audio recording of the open, public meeting." Gekas v. Worthington, 2019 IL App (2d) 170420, 2019 IL App. (2d) LEXIS 175 (Ill. App. Ct. Jan. 31, 2019) *17 (We appreciate the candor contained in the court’s opinion regarding the "target" of the legislation and the issues involved: "[G]iven the general ban on recording interpersonal communications, the amendment as applied to the PACER meeting essentially only affects individuals that government agencies target for their wrongdoing." Id. at * 13. We agree with this observation in the individual case discussed, but do not agree that this obviates the broader First Amendment and privacy concerns discussed in this post.).
In contrast, outside of licensed filming or consent, clandestine video recording of an employee while in private constitutes intrusion upon seclusion and a substantial and highly offensive invasion into seclusion " in a physical setting in which a person has a reasonable expectation of privacy." Lawlor v. N. American Corp. 283 Ill. App. 3d 162, 168-169 (1st Dist. 1996). Thus, the situation sought to be recorded was critical in determining whether a video recording would be considered a "reasonable expectation of privacy" for purposes of Section 14 of the Illinois eavesdropping Act.
Consequences of Illegal Recording
Violating the Illinois video recording statute has serious consequences. The law is a class 4 felony and you could be sentenced to up to 3 years in jail and/or a $25,000 fine.
Second, if you do get charged with felony eavesdropping you are going to get indicted (unlike misdemeanors which usually stay in "the people’s court"). This means that you will be carried before a grand jury over which the judge will preside. The purpose of the grand jury is to ascertain whether or not the state has enough evidence for a trial. Even at the grand jury level charges can be very high. In most criminal cases at the grand-jury stage the majority are dismissed but the level of felony eavesdropping charges seem to be much higher.
If the grand jury believes that more investigation needs to be done regarding a case, the grand jury may elect to order what is called a "John Doe" subpoena. A John Doe subpoena allows for more information to be collected, such as phone and other records, so that the potential charge of felony eavesdropping can be fully investigated before a possible indictment.
Also worth considering is that electronic surveillance is so common place in recorded media that prosecutors may feel even more compelled to prosecute anyone violating the statute.
Felony eavesdropping gets even more risky when you consider that felony eavesdropping can be charged in conjunction with other felony charges such as felony invasion of privacy. Becoming convicted of any type of felony can drastically alter your personal life and can potentially destroy your reputation.
The fallout of a felony conviction is much longer than any prison sentence, which makes it imperative that you fully understand and respect Illinois video recording laws.
Loopholes in Illinois Law
The Illinois Supreme Court has ruled on a number of occasions involving situations where recording a conversation or transmission did not violate the Eavesdropping Act. These exceptions include: A person recording a call or communication using his or her own device and from his or her own premises is not subject to the prohibition in the Eavesdropping Act. Further , it is not an offense for a security officer to record in-house activity when employed by the premises’ owner and that the Eavesdropping Act is not violated if the security officer recorded a conversation on private property where he or she had the right to be. A person acted lawfully when he used video to capture an image of a person committing an offense against the public order and such use of the video otherwise comported with the other provisions of the Video Recording Act of 1998. An individual posted a handwritten note on an office door as a notice of a videotaped meeting; the note stated the location, date, time, and specified that the meeting would be video recorded. The consent element of the Video Recording Act was not violated because the public generally and the plaintiff, as a visitor to the office, would have received the notice before entering the office.
Consulting an Attorney and Adhering to Best Practices
Understanding the complexity of Illinois video recording laws can be daunting for business owners and organizations. That is why we recommend that you contact an experienced Illinois recording law attorney when you are concerned about any issues relating to the video recording of employees, customers or others. In addition, keep in mind some important tips and best practices:
- Videotape only what is necessary: Fewer cameras can help reduce footage that may need to be reviewed later, which can be a costly and time-consuming process.
- Train employees: Make sure employees who handle or interact with security cameras are trained on best practices for recording, reviewing footage and responding to security needs.
- Monitor compliance: Keep up with the legal and regulatory landscape and monitor the practices of your industry to make sure you are in compliance with all requirements.
- Retain legal counsel: Periodically review your business’ video recording, storage and monitoring practices with an experienced attorney to make sure you are in compliance and have the proper documentation on file should a dispute arise.
As with all legal matters, the best advice is to consult with an experienced attorney to ensure compliance with all aspects of Illinois video recording and monitoring laws. Failure to do so could result in serious legal consequences.
The Age of Technology and Its Effect on Privacy Statutes
For individuals who engage in video recording for journalistic or personal purposes, technological advancements continue to have a significant impact on both privacy and video recording laws of Illinois. The Act acknowledges in the legislative purpose that Illinois residents value "the right to capture and publish images from public spaces" and that rapid advancements in technology, "will continue to faciliate [sic] and encourage future growth in, and applicability of, such practices."
For individuals, beneficial technologies make it easier than ever to capture and preserve the world around them, and even distribute that information to a wide audience. From smart phone capability to rapidly advancing camera technologies, individuals are more likely to capture significant events on video. However, this increased capability also raises considerations regarding privacy and audio recording.
The Act recognizes that with the increasing use of video recording devices "[t]he threshold at which an individual can expect to be the subject of a video recording will have been lowered from a much higher threshold for recording equipment outside of the home." An individual generally has a decreased expectation of privacy outdoors because copyright law does not protect images created by audio visual recording devices from copyright infringement.
The advancement of recording capabilities means that situations that were once very private are now much less private. Individuals need to be cognizant that many new technologies , like selfie sticks, drones, and cameras with extended zoom capabilities, stretch the boundaries of what was traditionally considered a reasonable expectation of privacy. As the Act indicates, the fact that recordings occur in public still does not mean the law would consider the act legal. Individuals need to be aware that other laws also may apply.
In addition to state and federal laws that may apply, individuals should be mindful of how their actions may impact tort liability. In order to prevail on a public disclosure of private facts claim based on information captured in public, an individual must show that the information, "is not of legitimate concern to the public." (See ZC., Inc. v. Durant, 236 F. Supp. 2d 839, 843 (N.D. Ill. 2002).) Other torts that may be impacted by privacy concerns include trespassing, intrusion, and appropriation of likeness.
While the fact that a recording takes places in public places may lend support to the assertion that a person has only limited privacy where they are recorded, this does not mean that the individual lacks criminal protections. For example, badgering and peeping can be sufficient to support a felony conviction. (720 ILCS 5/26-4; 720 ILCS 135/15-1.)
The impact of technology on privacy laws is a complex area of the law which individuals should carefully consider prior to engaging in videoing in public.
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