Are You Carrying an “Eavesdropping Device” in Your Pocket?

In a recent episode of the CBS television drama “The Good Wife”, characters used devices such as smartphones, to surreptitiously record conversations with others. While the storyline did not include these people facing liability for their actions, this depiction of events caused me to think back to Don Kelly’s previous blog post about the everyday liability traps posed by the Illinois Eavesdropping Statute!”

By way of reminder, the Illinois Eavesdropping Statute is an Illinois criminal law, but it can still trigger civil liability for violations. As a result, individuals and businesses are at risk of incurring liability under the statute for noncompliance based upon everyday activities. In this post, I will focus on what constitutes an “eavesdropping device” under the law.

According to the Illinois Eavesdropping Statute, an “eavesdropping device” is defined as follows:

“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 concluded 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.”

This basic definition, specifically the part describing an eavesdropping device as “any device capable of being used to hear or record oral conversation,” raises the specter that a wide variety of everyday devices could potentially fall under the definition of “eavesdropping device” for the purposes of this statute. For example, does your telephone turn into an eavesdropping device if you use the speakerphone feature and have a co-worker in the room without the other person’s knowledge? Are various features available on your smartphone potential “eavesdropping devices”?

Existing case law gives guidance on whether a speaker feature during a phone call makes the telephone an eavesdropping device. As a starting point, multiple cases have noted that a conventional telephone, alone, is not an eavesdropping device. In the 1982 Illinois Supreme Court case of People v. Gervasi, the court indicated that for a telephone to be an eavesdropping device, it must be “functionally altered” in some manner so that it is no longer capable of performing its customary function of being a telephone. In People v. Armbrust, a 2011 Illinois Court of Appeals case, the court determined that using a phone’s speakerphone feature did not functionally alter the phone’s ability to transmit and receive sounds, so this use did not violate the Eavesdropping Statute. Notably, in Armbrust, the defendant was charged with harassment for calling his estranged wife and threatening to kill her. The defendant attempted to have the evidence of a phone call’s content excluded on the grounds that the wife’s use of the speakerphone function on her cellphone, so her friend could hear it, was a violation of the Eavesdropping Statute. In looking at Armbrust and other cases, it would appear that the key focus when deciding whether a phone can constitute an eavesdropping device is whether a device has been “functionally altered.”

Unfortunately from the standpoint of clear application of eavesdropping laws, cellphones now have much more capability than simply speakerphone capability. Many of the Illinois cases defining the ambit of the Eavesdropping Law were decided before the existence of smartphones.

In its ruling that the Statute in its 2014 form was unconstitutional due to it being overly broad, the Illinois Supreme Court, in fact, noted the ubiquity of smartphones, along with use of their capabilities. These facts emphasize the point that technology develops at a faster rate than does case law.

Smartphones now have multiple recording capabilities, including voice recorders, still camera and video cameras. Surreptitiously using these applications would certainly seem to implicate the eavesdropping law because as standalone devices, voice recorders and video cameras would clearly meet the definition of an “eavesdropping device” under the statute. The safest course, then, is to assume that each of these recording applications on any smartphone constitutes an eavesdropping device – if used surreptitiously. Thus, the best plan of action is to avoid actions that might be in violation of the Illinois Eavesdropping Statute. To accomplish this, we must remain informed about statutes like the Illinois Eavesdropping Statute, or be prepared to ask questions when we have them. A simple question could save you from a lot of legal trouble later.