by: Thomas R. Cross

With home automation systems becoming increasingly accessible to the average homeowner, surveillance products like the Amazon Cloud Cam, Nest Cam, and Ring Video Doorbell are finding their way into ever more residential properties. Unfortunately, the average homeowner’s use of these, and similar, products may not be compliant with the Illinois Eavesdropping Act (“Act”).

The Law – Illinois is in the Minority

Video surveillance devices are generally legal to use in one’s own residence, provided it is not used for voyeuristic purposes or directed toward an area of the premises where a person would have a reasonable expectation of privacy (a bathroom, for example). However, a different legal standard applies to the overhearing, transmission, or recording of audio, a key feature upon which these new home surveillance products are marketed and sold.

Federal and state eavesdropping laws can be split into two groups: one-party consent statutes and two-party consent statutes (also referred to as “all party” consent statutes). One-party consent statutes mostly require that only one party to a conversation must consent to its recording. Presuming that the person conducting the recording is participating in the conversation, the result of a one-party consent statute is that an individual may record a conversation they are part of without the consent of any other party to that conversation. Two-party consent statutes require the consent of all parties to a conversation before that conversation can be recorded.

The federal government, as well as thirty-eight (38) states and the District of Columbia, have adopted some variant of a one-party consent statute. Illinois, however, is a two-party consent state, and its law prohibits the surreptitious use of a device to overhear, transmit, or record all or any part of any private conversation, unless done so with the consent of all parties to the conversation. 720 ILCS 5/14-2. The Act defines “surreptitious” as being “obtained or made by stealth or deception, or executed through secrecy or concealment” and “private conversation” as an oral communication where one party “intended the communication to be of a private nature under circumstances reasonably justifying that expectation.” 720 ILCS 5/14-1. To determine whether a person had a reasonable expectation of privacy will likely require the advice of legal counsel after a thorough review and discussion of the specific facts and circumstances involved.

What can you do?

The practical question, therefore, is how a homeowner can utilize these home surveillance products without risking a violation of the Act. Do homeowners need to obtain consents and waivers from the contractor renovating the bathroom or visitor who rings the doorbell? What about when the home is listed for sale and prospective purchasers are touring the house?

The most conservative approach is for the homeowner to disable all audio capabilities of the surveillance device. Alternatively, the owner could obtain express consent prior to transmitting or recording any audio. Neither solution is ideal, and the latter would be so impractical that it might render the surveillance system virtually useless.

It remains to be seen whether Illinois courts will establish an exception that otherwise allows homeowners to fully utilize these products. Considering the Illinois General Assembly only recently amended the Act in 2014, not much time has passed for a pertinent case to find its way into the courts for deliberation. It is not surprising, however, that guidance from the courts is – and may remain – sparse as it relates to this issue, as most people likely won’t even realize that their communications are being transmitted or recorded on these devices, so long as the homeowner doesn’t disclose this fact or disseminate the recording. Regardless, if an Illinois homeowner does choose to employ the complete capabilities of these automated home surveillance systems, an understanding of the issues discussed herein could be beneficial and a consultation with an attorney might be prudent.

The information in this article is for informational purposes only and does not constitute formal, legal advice. Contact the attorneys at HolmstromKennedyPC for advice regarding your particular circumstances.

Thomas Cross

Tom is an associate in the firm and a member of the Commercial Litigation, Corporate & Business, Real Estate, Employment & Labor, and Health Care Law Groups. Tom counsels small and medium-sized businesses with their general corporate governance, reorganization, mergers, acquisitions, and director and officer liability matters.