Seventh Circuit Affirms Summary Judgment Against Illinois Eavesdropping Law Claim

Illinois is somewhat unique among the states when it comes to its eavesdropping statute. Illinois has a statute which prohibits recording a phone conversation unless all the parties to the conversation consent. 720 ILCS 5/14-2(a)(1). In the same act, persons are barred from later using or distributing any data procured through a recording that lacks the required unanimous consent. 720 ILCS 5/14-2(a)(3). There are exceptions, and a significant one covers a situation where one of the parties to the conversation has fear of a crime occurring. 720 ILCS 5/14-3(i). The statutory exception imposes specific requirements, including that one of the parties to the conversation makes or requests the making of the recording, that said person has a reasonable suspicion that another party to the conversation has committed, is committing, or is about to commit a crime against that person or a member of that person's immediate household, and that the recording of the conversation may produce evidence of that criminal offense. Id.

The boundaries of the cited statutory exception took center stage in the case of In Carroll, the employee was reportedly disgruntled over being allegedly overlooked when she was not considered for a supervisory position that opened up, but for which she did not apply in 2005. Earlier that year, the employee had reported two other employees in an internal complaint and those employees were terminated. This time, however, the employee took matters into her own hands by calling up the new supervisor after 9 p.m. on Thanksgiving and let go with a "rant." What the employee did not know was that the spouse of the supervisor picked up another phone line and recorded the "rant." The call led to an internal report the next workday, a playing of the recorded call for another supervisor, and later police reports filed by the respective participants to the phone call. Two months later, the employer terminated the employee. She then sued her employer, the supervisor, and the recipient/recorder family member alleging multiple claims, but the only one on appeal alleged civil law violations of the Illinois eavesdropping statute. 

To challenge the adverse summary judgment ruling, the employee urged that factual disputes over whether the family member recorder had a reasonable suspicion of a crime compelled a reversal. The Seventh Circuit was nonplussed, finding that any economic motive the spouse may have had for recording the "rant" did not contradict her testimony that she feared the commission of a crime,and thereby did not create a material, genuine issue of fact. The employee's next contention, that the supervisor yelled at the employee during the same call also failed to generate an issue of fact because any such fact failed to contradict the recording spouse's fear of criminal activity. The court also rejected the employee's arguments over the reasonableness of the recording spouse's fears of criminal activity and brushed aside the purported significance of the absence of any criminal prosecution. In addition, the court construed the fear of crime exemption as covering all parts of the eavesdropping statute, which led to a conclusion that the employer and the individual defendants did not violate the Illinois eavesdropping law by replaying the recorded "rant" before supervisors of the employee. 

The Carroll opinion highlights the need for employers to seek counsel when there are allegations of potential criminal activity, and before recordings of some type have been played, in order to properly evaluate the laws that may govern the replaying of such materials.