Seyfarth Synopsis: The Illinois Supreme Court has held that a plaintiff may sue for mere violation of BIPA, regardless of injury. The ruling will likely greatly increase the potential exposure of companies in actions alleging violations of the Act and makes strict compliance with the Act significantly important. Accordingly, businesses using or licensing biometric technology in Illinois or collecting or receiving biometric data on individuals in Illinois must take immediate compliance measures or else face the potential of significant liability and damages in class action litigation.
This blog recently reported on developments in California regarding potential liability for businesses under California’s Call Recording and Monitoring Privacy Laws for recording or monitoring inbound and outbound telephone calls with customers or employees as well certification pitfalls to such cases. Other states, such as Illinois, have similar criminal statutes related to the recording or monitoring of such calls. In Illinois, for example, it is a crime for any person to record any conversation or electronic communication unless done so with the permission and consent of all parties to the communication. See 720 ILCS 5/14-2. While recent California opinions have curtailed the ability for plaintiffs to bring class action complaints under California’s privacy laws, the Illinois Supreme Court has gone even further. In a pair of opinions recently released by the Illinois Supreme Court, People v. Clark and People v. Melongo, the Illinois eavesdropping law was declared unconstitutional as violating the overbreadth doctrine under the First Amendment of the United States Constitution.
The Decisions in Clark and Molongo
In Clark, a Kane County man was charged with violating the eavesdropping law when he recorded judicial proceedings relating to a child support matter because there was no court reporter present. People v. Clark, 2014 IL 115776 (March 20, 2014). The Illinois Supreme Court recognized that while protecting “[a]udio recordings of truly private conversations are within the legitimate scope of the statute,” innocent conduct is also prohibited. By way of example, the court explained that the statute criminalizes “(1) a loud argument on the street; (2) a political debate in a park; (3) the public interactions of police officers with citizens” … and “(4) any other conversation loud enough to be overheard by others whether in a private or public setting.” None of these examples implicate privacy concerns – the interest which the law was designed to protect, but would subject the recorder to criminal prosecution. The court reasoned that the statute burdens substantially more speech than is necessary to serve the interests the statute may legitimately serve and, therefore, is unconstitutional.
In Melongo, a Cook County woman was charged for recording three phone conversations with a court employee and then posting those recordings to her website. See People v. Melongo, 2014 IL 114852 (March 20, 2014). Melongo raised a slightly different issue than the defendant in Clark. The defendant was charged with not only recording communications without all parties’ consent, but also publishing audio recordings of those communications to her website, which violated the “publishing provision” of the statute. Relying on the analysis in Clark, the Illinois Supreme Court held that because it had determined that the statutory provision criminalizing defendant’s recording of conversations was unconstitutional, the publication of those conversations can likewise not be unconstitutional because it would amount to a “naked prohibition against disclosure.” In other words, as applied, the publishing provision makes it illegal to publish all manner of recorded communications, irrespective of any legitimate interest the publisher or public may have.
We expect the Illinois legislature to respond by drafting an updated statute that reflects the ubiquity of small, portable electronic devices in today’s world and responds to the overbreadth concerns raised in the Clark and Melongo opinions. The impact of any future legislation will be addressed in future posts.