Illinois Video Recording Laws – An Overview
The laws governing video recording in the state of Illinois are an essential aspect of protecting privacy while balancing the practicalities of modern life. Given the prevalence of video recording technology in everyday scenarios — from smartphones to home surveillance systems — a clear understanding of these laws is crucial for both residents and non-residents alike.
In Illinois, the key regulation concerning video recording is found in 720 ILCS 5/14-2, which outlines the legality of audio and video recording under the Illinois Eavesdropping Act. While many people are familiar with the idea of "eavesdropping" as listening in on a private conversation, Illinois law also applies to visual and audio-only recording. For the most part, Illinois is a "one-party consent state," meaning that only one person participating in the conversation or exchange needs to consent to the recording for it to be legal.
The need-to-know aspect of section 14-2 arises when a recording involves a person where there is a reasonable expectation that they may have privacy, such as in a telephone call, meeting, or in the home. In this context, consent must be obtained by "all parties" to the communication in order for the recording to be lawful . Further, consent for the recording of some types of conversations can only be granted if permission is given at the time of the conversation by "clear audio or written notice" that the conversation is being recorded.
These aspects of the law are significant for various reasons. For example, in a legal context, certain exceptions exist for the purpose of legal discovery — a court-ordered exception given it is not a "general investigative technique" and allows an attorney to reach out to a witness outside of the normal process of the case. Despite these exceptions, making a false statement that someone has consented to a recording is illegal in Illinois. Penalties for this criminal offense can range from a Class 4 felony to a Class 3 felony for repeat offenses.
An important note is that while the recording of video in public is generally acceptable and does not require consent, once a person enters a private dwelling, such as a residence, they are no longer in a public space and eavesdropping — even just video — without consent is often illegal.
Different areas, such as Chicago, will likely have their own requirements for video recording based on any local ordinances or regulations. Home and business owners should consult the proper resources to determine their rights in this respect, including checking whether their community has its own video surveillance ordinance.
Understanding One Party Consent Law
In Illinois, while audio recordings may require the consent of all parties under the Illinois Eavesdropping Statute, the recording of video does not have to follow the same strict regulations. Video recordings can often be done without consent of the subjects being recorded. To understand how recordings are evaluated under Illinois law, we need to think about how the courts construe different kinds of recordings.
Illinois has a rather expansive definition of both audio and video recordings. Illinois courts have defined video recordings as: The act of collecting images, albeit still or moving and sounds on any medium, for immediate or future reproduction or transmission. Further, under Illinois law, any recording that has an audio component, even if the predominant purpose of the recording is visual, will be treated as an audio recording subject to Illinois’ strict one-party consent laws. Illinois courts have held, based on the Illinois Eavesdropping Statute that the term "any device" applies to both audio devices, such as microphones, and video devices, such as security cameras with microphones.
Under laws governing audio and video recordings, Illinois is a "one-party" consent state. This means that only one person taking part in the conversation, or video recording must consent to the conversation or video recording. Under the Illinois Eavesdropping Act, a person commits eavesdropping when he or she uses an instrument, including a device capable of transmitting or recording oral communications by other means, for the purpose of overhearing or recording the oral communications of another without the consent of the other or overhears the oral communications of another by the use of any device and of which the other has not been specifically notified.
There are several noteworthy exceptions to the eavesdropping law. For example, there is an exception for video recordings in situations where there is a reasonable expectation of privacy, such as a locker room. There are also other exceptions found in 720 ILCS 5/14-7(b).
Moreover, the Act provides that, "It is not a violation of this Article for a person who is a party to the communication or who gives consent as provided in this Section to use a telecommunication, or an attachment thereto, for the purpose of recording a conversation involving that person to which he or she is a party." However, the exception is even broader than that. No consent is needed from any party when a parent or legal guardian permits a child to record the communication.
In short, neither the audio nor video recording of a conversation requires all parties to provide their consent.
Public vs. Private Spaces: What’s Legal Where?
In the context of video recording, it is important to distinguish between public and private spaces in Illinois. A public space is one that is open to all for the purpose of exercising their right of free speech and freedom to assemble. Public spaces in municipalities will usually be either government owned but open for public use, such as a park, or a private place that serves a public purpose, such as a mall. For example, a privately owned mall may even post a no camera sign but if they are open to the public and allow the public to pass out literature or campaign for political office, it is a public forum. The United States Supreme Court even allowed the public to pass out literature at an airport terminal because it views them as open to public use. Any restriction placed on speech in a public forum must be limited in its impact so as not to infringe upon this constitutional right, and it cannot be imposed based upon the viewpoint of the speaker or content of the speech.
For a space to be considered public it is generally an area that allows for the public to view the interior without entering the space. The court will specifically look at how visible the space is from the outside. This means that if an individual can see into a home or business without physically entering the property and without the use of any artificial devices or tools, structures or equipment, such as a camera, then the property is public and the individual does not need consent to record those activities that are observable from the outside.
A private space is one that is only for those whom the owner authorizes to enter, such as an apartment or even a road. And the owner has a right to control the use and disclosure of whatever information is obtained since no notice was given that the owner intended to grant anyone access to that information.
How Video Recording Affects Businesses and Employers
The issues about video recording that arise for the public are magnified for businesses and employers. At any time, a business can have several of its employees video recording others, either on company property or elsewhere. These issues include whether to allow employees to use their phones or tablets for this purpose, whether to allow for recording by surveillance cameras, as well as how to train employees and enforce policies on video recording and privacy when needed, for example, where an employee is recorded but also recording others at work, or an employee aggressively records another to intimidate them.
Policy considerations. A business will want to establish policies and procedures for use of cameras or recording devices, following the usual considerations of privacy and liability, of course. Policies can include:
The above policies can include an entire range of information, such as defining what is prohibited, training employees on when to report other employees who do this on the job, and a company’s procedures for responding to these complaints or issues.
Liability. In the unfortunate event that an employee is caught video recording in a way that violates the policies set above, then the employee can be disciplined. This means the above should at least provide grounds for discipline. If the employee is terminated, he or she may be able to successfully sue on the basis of retaliatory discharge, given that the employee was simply following known policy. Therefore, the company needs to act reasonably, with a clear policy and procedure, that is known and understood, is applied uniformly, and the discipline is appropriate for the violation.
Most significantly, the company can be liable for its own conduct, through its policies and procedures, and its knowledge of any employee video recording violations. The company should take all issues seriously, investigate reports up the chain of command so that the company is responding appropriately and reasonably, and then ensure appropriate discipline is given.
Video Recording with Law Enforcement
Under Section 14-3.5 of the Criminal Code, camera recordings of law enforcement in a public space by citizens is considered lawful. Refusing to identify yourself or any recording technology to an officer on the scene is considered a misdemeanor. It doesn’t matter if the recording, video, audio, or photography is being done from the sidewalk, street, or your home, you are not breaking any laws by recording law enforcement in action. As with almost every area of the law, however, there are a number of caveats and limitations to this principle. In particular, the clause "in a public space" means that there should be no expectation of privacy or discretion on the part of law enforcement as it pertains to what they are doing. Recording from a significant distance, such as a sidewalk or the road, is acceptable if the activity in question would otherwise be considered public (such as certain types of arrests) . However, if you are at all concerned that the activity in which the officers are engaged was a private action or took place out of public view, you should not record it without first obtaining permission. Recording actions that are technically private could put you in legal trouble — even if your intent is to expose something untoward — so consider carefully whether the activity in which the officers are participating is indeed public before bringing out the recording device. Finally, you shouldn’t assume that filming of officer activity in progress is legally protected until after the activity is over. The law is very clear that officers who believe that filming or recording constitutes an obstruction of justice can, and often will, stop recording of the activity. Section 14-3.5 is crystal clear that no reasonable person would actually consider recording to be an obstruction of justice, and such an assumption can be used against them as an attempt to falsely apply the law. This is almost always the case, and if an officer acts in such a way against you, you should not hesitate to press charges.
Consequences for Disobeying Video Recording Laws
Violations of the above referenced sections (710 ILCS 34/, and 720 ILCS 5/26-4) could result in a Class 4 felony conviction, which carries penalties up to 3 years in prison, 12 months of mandatory supervised release, and a fine of $25,000. Penalties for Class 3 felonies range from 2 to 5 years prison time, 4 years of mandatory supervised release, and fines up to $25,000.
Violations of 720 ILCS 5/4-4(a), which prohibits eavesdropping upon or recording others without their knowledge, is considered as a Class 1 misdemeanor, punishable by up to 1 year in jail and $2,500 fine. A violation of Section 1-17(a) of the Illinois Penal Code, (which prohibits videotaping a person without their consent when the person is in a place where they have a reasonable expectation of privacy) can be prosecuted as a Class 3 felony, unless the offense is committed for the purposes of video voyeurism (defined in Section 26-4 of Chapter 720). Violations of Section 26-4 are Class 1 felonies, liable for up to $25,000 in fines, and up to 4 years in prison.
Recent Litigation and Cases
In recent years, the interpretation and enforcement of video recording laws in Illinois have been influenced by significant legal cases that emphasize the importance of understanding the "reasonable expectation of privacy" standard. Notably, in 2014, in People v. Smith, the Illinois Appellate Court overturned a conviction that was based on the defendant secretly recording nude videos of several women without their knowledge. In its decision, the court stated that the video-taping did not violate section 26-4 of the criminal code because the court determined that the women were in places where they should have expected not to be recorded. This case helped to provide clarity on what constitutes legitimate "innocent use" of a recording device.
Further, in 2015, in People v. Clark, the Illinois Court of Appeals addressed the issue of whether the Illinois eavesdropping statute extends to "active" listening, meaning hearing a conversation through some electronic means, as opposed to merely recording conversation. The court determined that in order to be considered illegal eavesdropping, a person must record the conversation, and the law requires that the eavesdropper must have some part of the conversation "intercepted or recorded." Importantly, this decision provided further clarification on the distinction between recording a conversation and simply overhearing it.
Case law in Illinois has thus established that for video recording laws to apply, there must be a technological aspect—something being recorded, as opposed to only the overhearing of a private conversation. It is also important to note that while the laws outlined in part 2 are a few of the most common laws among states, not all states have eavesdropping statutes similar to Illinois’. Further, in some states where eavesdropping laws do exist, the "relevant statutes do not universally define when a citizen’s expectation of privacy in a particular place is reasonable." Therefore, in reviewing these cases, one can appreciate that in Illinois, case law plays a crucial role in the enforcement and interpretation of video recording laws.
Legal Video Recording Tips
The existing Illinois Eavesdropping law prohibits the recording of people where there is a reasonable expectation of privacy. This includes bedrooms, bathrooms and other areas of a home where people would have a reasonable belief that their conversations or movements were private. This prohibition applies to digital video recording as well as audio recording. However, the law does not prohibit taking video recording of public places, such as a shooting scene outside, or a store aisle or checkout area, where people would have no expectation of privacy in their actions or speech. Before attempting to make any video recording, consider who, what and where as listed below, to comply with the letter of the law.
Who? In Illinois, people where have a reasonable expectation of privacy cannot be recorded under state law without their knowledge and consent. This extends to both audio and video recording. Specific laws grant exceptions to recording real estate commission conversations, complying with the Federal Wiretapping Act, and sex offender registration and compliance . When police or law enforcement officers are recording, the rules and regulations aim to protect the privacy of the people being recorded. The same can be said for adoptions and financial institutions required to comply with the Bank Secrecy Act.
What? Under current Illinois state laws, those recording videos or deploying cameras in Illinois are prohibited from: In addition to these, there are many different exceptions and exemptions found in other Illinois laws, including things like cable services and eavesdropping.
Where? To fall under the current state’s laws, the people involved need to have an expectation that their conversations or actions will be private. This is objective in nature and courts will look at many different factors to determine perspective, intention, and the overall context of the conversation. A bed room conversation is private, but talking on a park bench is not. If there was no reasonable expectation of privacy for the people speaking or being filmed, the person making the video can avoid criminal liability.