It is no secret that emotions run high during a divorce or custody proceeding. Sometimes parties seek orders of protection from one another to prohibit acts of abuse or harassment from occurring.
Imagine this scenario: Chris and his girlfriend Rhianna are having an argument about who will have custody of their daughter after they split up. Chris gets really angry, punches Rhianna in the face, and smashes her face on the dashboard of his car. In turn, Rhianna files for an emergency petition for an order of protection against Chris.
In court, the judge orders Chris to stay away from Rhianna. Furthermore, he is prohibited from communicating with her, except regarding issues related to their daughter. A week later, Chris calls Rhianna and when she answers, she clicks the “record” button on her iPhone. Chris proceeds to tell her how sorry he is and how he just wants another chance. He says “I love you, I’m coming over right now to show you how much I love you and you better let me in, or else.” When she hangs up, Rhianna calls the police, plays the recording for them, and has Chris arrested for violating the order of protection.
Prior to March 2014, Rhianna would not have been able to use that recording to prove that Chris had violated the order of protection by harassing communication. The old version of the Illinois Eavesdropping Act provided that a person could be arrested for recording someone, private or public, without their knowledge or consent. The law was one of the most restrictive in the United States. The law not only restricted recording of private individuals but also public individuals and occurrences. As a result, under the old law, it was illegal to record, for example, public debates, protests, or interactions between the public and police officers.
In December 2014, however, a new version of the law passed. Under the new law, it is legal to record public officials or police officers in a public setting without their consent. However, in conversations which a person would have a reasonable expectation of privacy, the person recording must obtain consent before doing so. The law defines a private conversation as “any oral communication between two 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.” The law does not define exactly when a person would have a “reasonable expectation” of privacy. Presumably, the courts will determine whether an expectation of privacy is reasonable on a case-by-case basis.
The new law does contain an interesting exception to the prohibition of recording individuals in private conversations. Specifically, the law allows a person to record a private conversation to obtain evidence of criminal activity. The exception states that it protects the “recording of a conversation made by or at the request of a person, not a law enforcement officer or agent of a law enforcement officer, 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.”
With this exception in mind, it seems difficult to know whether Rhianna in fact had “reason to believe” Chris was going to violate the order of protection when she began recording. On the one hand, the order of protection made it a criminal act for him to communicate with her regarding any subject except their daughter. On the other hand, he had not even begun speaking when she started to record him. Legally, the court would have to determine whether Chris had a reasonable expectation of privacy and whether Rhianna’s suspicion that Chris was about to commit a criminal offense was reasonable.
The impact of the new version of the law is yet to be seen in both public and private scenarios. It is important to consult an experienced attorney to determine whether a recording can be admissible in your case or whether you have violated the law.