Is Illinois a two-party consent state?

720 ILCS 5/14-2 requires that the device be used "in a surreptitious manner" without the consent of all parties, and 5/14-1 defines surreptitious as "obtained or made by stealth or deception, or executed through secrecy or concealment".

"Private conversation" means an oral communication between two or more persons, in person or transmitted, "when one or more of the parties intended the communication to be of a private nature under circumstances reasonably justifying that expectation". A parallel definition governs private electronic communication. An expectation of privacy is required and is the core of the post-2014 statute.

Because the offence reaches only surreptitious recording, an openly announced and visible recording appears to fall outside its elements entirely, independent of consent. That is what the elements say rather than a holding: no case applying the surreptitiousness element to announced-recording facts was found.

In People v. Clark, 2014 IL 115776, and People v. Melongo, 2014 IL 114852, both decided on 20 March 2014, the Illinois Supreme Court held the then-existing eavesdropping statute facially overbroad under the First Amendment, because it criminalised open recording of public conversations. That left Illinois with no enforceable eavesdropping statute at all until Public Act 98-1142, signed on 30 December 2014, introduced the private-conversation and privacy-expectation framing.

RCFP's Illinois page is stale on this. It does not mention Clark, Melongo or the rewrite, and describes a flat all-party rule. Where RCFP and the amended text diverge, the amended text governs, and anything sourced from a pre-2015 survey is describing a statute that was struck down.

Practitioner commentary reads the amended statute as all-party for oral conversations but, by negative implication, one-party for private electronic communications, which includes telephone and video conferences, because only a non-party is prohibited from surreptitiously intercepting those.

If that reading is right, a participant could record a video call in Illinois without notifying anyone. It is contested and we would not rely on it. A video meeting where some people are in a room is arguably an oral conversation as well, and the cost of being wrong is a felony.

Under § 14-4, eavesdropping is a Class 4 felony on a first offence and a Class 3 for a second or subsequent one. Where the recorded party is a law enforcement officer, State's Attorney, Attorney General or judge acting in official duties, it is Class 3 first and Class 2 thereafter. RCFP's figures of one to three years and up to $25,000, rising to two to five years, reconcile with Class 4 and Class 3 sentencing.

Civilly, § 14-6 gives injunctive relief, all actual damages and punitive damages, with no statutory dollar amount.

No rule settles which state's law applies to a conversation spanning two of them, several may apply at once, and courts have reached opposite results on comparable facts. If anyone in the meeting is in Illinois, the practical answer is to satisfy Illinois. The general problem is on the US overview.

Said before the substance starts, so the consent is prior; asking a question, so an answer is on the record rather than inferred from silence; and offering a way out, which is what makes the answer mean anything.

Before we start: I'm recording and transcribing this meeting so I have accurate notes. It runs on my own laptop and nothing is uploaded. Is everyone okay with that? If anyone would rather I didn't, say so now and I'll turn it off.

Then leave a beat for an answer. Longer and shorter versions are on telling people you're recording.

Earkeep records continuously and announces itself to nobody: no bot in the participant list, no banner on anyone else's screen. Where every participant's agreement is what makes the recording lawful, that means the whole of the obligation sits on you saying something, and the app will not remind you.

What it gives you is somewhere to go when the answer is no. A pause from the live edge releases the microphone and the system audio stream, so your operating system's own recording indicator goes dark in front of the person who asked. A meeting on a connected calendar can be marked never-record, so a standing meeting is decided once. And a stretch of the day, or a saved meeting with its transcript, can be purged: the lines come out of the file on your own disk and nothing is written in their place, with no server copy anywhere. The one caveat is that it is not recoverable either.

None of that makes a recording lawful in Illinois. Consent law is about the recording, not about where it is stored, so the fact that transcription runs on your own device and the audio is never written to disk is not an answer to the statute. It is an answer to a different and often more pressing question in the room.

• 720 ILCS 5/14-1
• 720 ILCS 5/14-2
• 720 ILCS 5/14-4
• People v. Clark, 2014 IL 115776
• People v. Melongo, 2014 IL 114852
• RCFP, Reporter's Recording Guide: Illinois
Stale: predates the 2014 rewrite.
• MWL, Laws on Recording Conversations in All 50 States (last updated February 2022)

• US recording laws, state by state: the federal baseline, the cross-border problem, and all 51 jurisdictions.
• Telling people you're recording: the scripts, and the three ways to stop.
• Private by design: why the audio never leaves your computer.

This page is legal information, not legal advice. It summarises statutes and cases rather than replacing them, and we are not lawyers. If the answer matters, ask someone who can be held to their answer.