The following blog post was first published on April 22, 2014, in the IAPP Privacy Tracker.
Do you watch The Good Wife? The show follows Alicia Florrick, a lawyer in Chicago and the wife of Gov. Peter Florrick. In an episode that aired on March 16, the characters were attending an American Bar Association (ABA) meeting in New York City. Alicia’s former partner Will Gardner retained another lawyer, Elsbeth Tascioni, to represent him in an investigation by the Office of Public Integrity (OPI) into his purported involvement with alleged voter fraud by Gov. Florrick. During a confrontation at the ABA meeting, Tascioni secretly records a conversation she has with an OPI agent, Nelson Dubeck, in which she gets him to admit that he does not currently have any proof of voter fraud and that he believes Florrick is guilty simply by virtue of being a governor of Illinois.
When Tascioni reveals that she has recorded their conversation, Dubeck insists that Tascioni is subject to prosecution because she did not have his permission to make that recording. In a line that only a privacy litigator could love, Tascioni reminds him that that is not true in New York, a one-party consent state: “Two-party consent is the law in Illinois, but this is New York – one-party consent is enough here, and I am one party, and I give my consent.”
Only four days after this episode aired, Tascioni’s clever maneuver would have been legal in Illinois, too, when the Illinois Supreme Court struck down as unconstitutional the Illinois two-party consent law.People v. Clark, 2014 IL 115776 (March 20, 2014).
What happened in Clark, and how will that impact the other two-party consent laws? After all, California, Connecticut, Florida, Maryland, Massachusetts, Montana, Nevada, New Hampshire, Pennsylvania and Washington also require the consent of all parties to the communication. But, in particular, what does Clark mean for California’s infamous two-party consent law?
The Clark Decision
In Clark, the defendant recorded conversations in court between himself and an attorney representing the opposing party in a child support matter. Clark claimed he made the recordings to preserve the record of the case because there was no court reporter present and argued that he had a First Amendment right to do so. The Illinois statute at issue, 720 ILCS 5/14-2(a)(1)(A), prohibited “knowingly and intentionally us[ing] an eavesdropping device for the purpose of hearing or recording all or any part of any conversation or intercept[ing], retain[ing], or transcrib[ing] electronic communication unless he does so . . . with the consent of all of the parties to such conversation or electronic communication.”
Crucially for the result in Clark, the statute was amended in 1994 to define “conversation” as “any oral communication between 2 or more persons regardless of whether one or more of the parties intended their communication to be of a private nature under circumstances justifying that expectation.” 720 ILCS 5/14-1(d) (emphasis added).
Noting that courts have recognized a facial challenge in the First Amendment context whereby a law may be invalidated as overbroad if a substantial number of its applications are unconstitutional, the Clark court held that the relevant section of the Illinois eavesdropping statute was overbroad. Why? Because “the statute burdens substantially more speech than is necessary to serve the interests the statute may legitimately serve.” Due to the 1994 amendments, “the statute … essentially deems all conversations to be private and not subject to recording even if the participants themselves have no expectation of privacy … It criminalizes a whole range of conduct involving the audio recording of conversations that cannot be deemed in any way private.”
How California Differs
California’s two-party consent law does not suffer from the defect that doomed Illinois’s two-party consent law in Clark.
California’s law is particularly notorious, and significant even for organizations outside California. A 2006 California Supreme Court choice of law decision (Kearney v. Salomon Smith Barney, Inc., 39 Cal. 4th 95 (2006)) held that the California law requires two-party consent for recording or eavesdropping on telephone conversations, even if only one of the participants is in a two-party consent state.
California Penal Code section 632 imposes criminal penalties on “[e]very person who, intentionally and without the consent of all parties to a confidential communication, by means of any electronic amplifying or recording device, eavesdrops upon or records the confidential communication.” Importantly, however, and unlike Illinois, California law limits the definition of the term “confidential communication” to a “communication carried on in circumstances as may reasonably indicate that any party to the communication desires it to be confined to the parties thereto,” and explicitly “excludes a communication made in a public gathering or in any legislative, judicial, executive or administrative proceeding open to the public, or in any other circumstance in which the parties to the communication may reasonably expect that the communication may be overheard or recorded” (emphasis added).
Because California’s—and several other states’—two-party consent laws are narrowly focused on the protection of truly private conversations, they likely would not have barred Clark’s courthouse conduct in the first instance.
Of course, it remains to be seen, in California and elsewhere, what happens in close cases where it is far less clear whether all the parties have a reasonable expectation of privacy in the conversation. In the meantime, unless and until the Illinois legislature crafts a new, more narrowly tailored law focused on protecting privacy interests—when the parties are all in Illinois, this conversation may be recorded with or without your consent.