The Journal of The DuPage County Bar Association

Back Issues > Vol. 20 (2007-08)

When are Internet Communications not “Electronic Communications” under the Illinois Eavesdropping Statute?
by Eric R. Waltmire

There are numerous accounts of law enforcement authorities entering Internet chat rooms, posing as children to catch predators soliciting children for sex. When a police officer saves an Internet chat room con-versation with a person suspected of soliciting children for sex, does he or she violate the Illinois eaves-dropping statute? What if a minor saves and later voluntarily turns over to the police an incriminating chat room conversation with a suspected predator? An article in the May 2004 issue of the Illinois Bar Journal indicated saving a copy of the conversation might con-stitute eavesdropping if done without a warrant.2 But, a closer analysis of the statutory definition of "electronic communication," finds the eavesdropping statute is not violated in these scenarios. This conclusion is supported by the First District Illinois Appellate Court’s decision in People v. Gariano.3 However, the analysis in this article goes further and addresses why the arguments provided in the dissent are not compelling.

The Illinois Eavesdropping statute states, in part:

A person commits eaves-dropping when he: (1) Know-ingly and intentionally uses an eavesdropping device for the purpose of hearing or recording all or any part of any conversation or intercepts, retains, or transcribes electronic communication unless he does so (A) with the consent of all of the parties to such conversation or electronic communication . . .4

The statute defines "conversation" as "any oral communication . . . "5 The statute provides eavesdropping is a felony and evidence obtained in violation of the statute is not admissible in any civil or criminal trial.6

Oral Communications

In People v. Beardsley,7 the Illinois Supreme Court addressed whether the surreptitious recording of a conversation between two police officers constituted the crime of eavesdropping. There, the defendant was placed in the back of the police car and subsequently arrested. The defendant surreptitiously recorded the conversation of the two officers that sat in the front seat. The officers claimed they did not know of or authorize the recording, although they knew the defendant possessed a tape recorder. The court noted where the party making the recording is a party to the conversation; the recording party could not be prohibited from repeating what he was told by the declarant. The court found when a party to a conversation makes a recording of the conversation the recording is simply a means of preserving an accurate record of what was said.8 Despite the language of section 14-2(a)(1)(A) of the eavesdropping statute, the court found there is no eavesdropping in that situation because the declarant had no expectation of privacy in what he told the recording party.9 The court found the police had no legitimate expectation of privacy with respect to their conversation because they conversed in the defendant’s obvious presences.10

In 1994, the Illinois legislature overruled Beardsley when it created the subsection defining "conver-sation" as "any oral com-munication between 2 or more person regardless of whether one or more of the parties intended their communication to be of a private nature under circumstances justifying that expectation."11 It broadened eavesdropping coverage to include all conversation regardless of whether the parties to the conversation had an expectation of privacy.12

Electronic Communications. Effective January 2000, the legislature amended the eaves-dropping statute to prohibit electronic communications from being intercepted, recorded, or transcribed.13 The Act added the following definition of "electronic communication" to the statute:

any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or part by a wire, radio, pager, computer, electromagnetic, photo electronic or photo optical system, where [1] the sending and receiving parties intend the electronic communication to be private and [2] the interception, recording, or transcription of the electronic communication is accomplished by a device in a surreptitious manner contrary to the provisions of this Article.14

The amendment was proposed in response to a problem with street gangs in Cook County. Gang members were cloning15 electronic devises such as pagers and cellular phones to determine which gang members were working as informants for the police.16

In People v. Gariano,17 the First District Illinois Appellate court held that the trial court did not error in refusing to suppress transcripts of instant message chat sessions between an undercover police officer and the defendant. There, during several instant message chat sessions between the defendant and the officer who posed as a 15 year-old boy, the defendant arranged to meet the officer for the purpose of having sex.18 The defendant claimed the recording and transcribing of chat sessions violated the eavesdropping statute. The officer testified that he never intended that the instant message communications with the defendant would be private.19 Therefore, the majority in Gariano concluded the communications were not "electronic communications" within the meaning of the eavesdropping statute, notwithstanding the common use of the term. As a result the officer did not violate the statute.20

In Justice Neville’s dissent, he claimed the majority erred in construing the "intent" language in the definition of "electronic communications."21 He relied, in part, on Representative Fritchey’s statement on the Illinois House of Representative Floor: "The only change that we made from the time this Bill flew out of the House was there was intent language that was put in which was lacking before. And at the request of the State Police the . . . what they tried to do was avoid intentional over hears to make it that it was the interception of an electronic communication that is prohibited."22 That is Fitchey’s direct quote from the House floor, which is not very clear. Justice Neville concluded that Fritchey’s statement, in part, indicated the statute was violated when police use an eavesdropping device to intercept an electronic communication. Further, Justice Neville concluded that Fritchey’s statement made clear that an officer’s subjective intent does not determine whether the communication was an "electronic communication."

The changes recognized by Representative Fritchey were those of Senate Amendment Three (SA3). It is best to compare the bill before amendment to the bill after the amendment to determine what the legislature intended. Before the amendment the bill did not contain a definition of "electronic com-munication." Instead it amended the definition of "conversation" to include any "telephonic electronics, or radio communication . . .between 2 or more persons regard-less of whether one or more of the parties intended their com-munication [to be private]."23 Also before the amendment the bill modified the definition of eavesdropping in section 14-2 to define the offense as:

A person commits eavesdropping when he: (a) Uses an eavesdropping device or facilitates the use of an eavesdropping device by manufacturing or possessing an eavesdropping device knowing that the eavesdropping device will be used to observe, hear, or record all or any part of any conversation unless he does so (1) with the consent of all of the parties to such conversation . . .24

Comparing this version of section 14-2 to the enacted version, it appears the intent language Representative Fritchey mentioned was the "knowingly and intentionally uses an eavesdropping device" language currently in section 14-2. Further, the pre-amendment bill defined eavesdropping device as only those devices capable of "being used to hear or record oral conversation." This seems to conflict with the definition of "conversation," in which it appears the drafters attempted to cover non-oral electronic communication. Regardless, the pre-amendment bill did not apply to Internet chat conversations because the bill prohibited only the use of "eavesdropping devices" capable to being used to hear or record oral conversations.

The meaning of Representative Fritchey’s statement is not clear, but what is clear is the language of the present definition of "electronic communication," which was added by SA3 and requires that the "sending and receiving parties intend the electronic communication to be private." If there is no "electronic communication" because one party did not intend the communication be private then there is no need to consider the rest of section 14-2(a) that provides an exception for activities that are done "with the consent of all of the parties to such conversation or electronic communication." If the legislature intended to cover Internet chat conversations between undercover police and unsuspecting parties then it could have easily provided a definition of "electronic communication" that required only one person to intend the conversation be private.

Expectation of Privacy with Internet Messages. An expec-tation of privacy, as protected by the Fourth Amendment, exists where (1) a person, by conduct, exhibits a subjective actual expectation of privacy and (2) that expectation "is one that society is prepared to recognize as reasonable."25 The U.S. Supreme Court has stated there is no Fourth Amendment protection for "a wrongdoer’s misplaced belief that a person to whom he voluntarily confides his wrongdoing will not reveal it."26 In Hoffa v. United States,27 the Court held the defendant had no Fourth Amendment protection in a conversation heard by invited government informant. The Court stated, "The risk of being . . . betrayed by an informer or deceived as to the identity of one with whom one deals is probably inherent in the conditions of human society. It is the kind of risk we necessarily assume whenever we speak."28

In United States v. Maxwell,29 the U.S. Court of Appeals for the Armed Forces relied on Hoffa, when it ruled a defendant lost any expectation of privacy in his e-mail once it was sent. Comparing email to postal mail, the court found the e-mail sender had a reasonable expectation the message would not be intercepted by the police without a warrant, but once the message was received by the intended recipient, "the transmitter no longer control[ed] its destiny."30 The court stated, "Messages sent to the public at large in the ‘chat room’ or e-mail that is ‘forwarded’ from correspondent to correspondent lose any semblance of privacy."31

In United States v. Char-bonneau,32 the United States District Court relied on Maxwell and Hoffa, when it refused to suppress statements the defendant made in an America Online chat room where undercover FBI agents were present. Similarly, in Commonwealth v. Proetto,33 a Pennsylvania court held there was no constitutional violation for the admission into evidence of chat-room conversations between the defendant and an undercover officer posing as a fifteen-year-old girl. The court also found no constitutional violation for the admission of chat-room transcripts and e-mails between the defendant and a minor, where the minor later voluntarily turned those documents over to police.34

Unlike oral communications under the Illinois eavesdropping statute, a communication qualifies as an electronic communication only when both parties intend the communication to be private. The legislature demonstrated, by overruling Beardsley, an intent to require all parties to consent to the recording of oral conversations. But, it has not imposed that requirement on electronic com-munications as evidenced by the statutory definition of electronic communication.

In Beardsley, the Illinois Supreme Court relied on the U.S. Supreme Court’s Fourth Amendment based decision in Lopez v. United States.35 Although the Illinois legislature overruled Beardsley, this reliance indicates the privacy interest expressed in the eavesdropping statute should be evaluated by the same standards as those defined by the U.S. Supreme Court under the Fourth Amendment.

In the case where an undercover police officer partici-pates in a chat with the defendant, it is clear the communication does not qualify as an electronic com-munication under the statute because the officer does not have a subjective expectation of privacy in the conversation. In the case where the defendant is chatting with an actual minor who later reveals the chat conversation to the police, Maxwell, Charbonneau, and Proetto indicate the sender cannot have a reasonable expectation of privacy in the messages once they are received by the intended recipient. The eavesdropping statute creates a protectable privacy interest in oral conversations even with respect to recording by parties to the conversation, but the same cannot be said for Internet communications because the very nature of the communication requires it to be recorded as is explained below.

Recording in a Surreptitious Manner? In addition to the requirement that both parties intend the communication be private, the recording, interception or transcription must be done in a "surreptitious manner" to qualify as an electronic communication.36 Webster’s Online dictionary defines surreptitious as "(1) done, made, or acquired by stealth, (2) acting or doing something clandestinely."37 A federal appeals court described the process of sending an e-mail in this way:

After a user composes a message in an e-mail client program, a program called a mail transfer agent ("MTA") formats that message and sends it to another program that "packetizes" it and sends the packets out to the Internet. Computers on the network then pass the packets from one to another; each computer along the route stores the packets in memory, retrieves the addresses of their final destinations, and then deter-mines where to send them next. At various points the packets are reassembled to form the original e-mail message, copied, and then repacketized for the next leg of the journey.38

The Proetto court stated with respect to e-mail and chat communications:

The sender knows that by the nature of sending the communication a record of the communication, including the substance of the communication, is made and can be downloaded printed, saved, or in some cases, if not deleted by the receiver, will remain on the receiver’s system.39

The Proetto court also noted a person in a telephone conversation has no reason to believe the conversation is being recorded, but "Any reasonably intelligent person, savvy enough to be using the Internet . . . would be aware of the fact that messages are received in a recorded format, by their very nature, and can be downloaded or printed by the party receiving the message."40

An e-mail, instant message, or chat room conversation, saved by a participant to the conversation or an occupant of the chat room, does not qualify as an electronic communication under the Illinois eavesdropping statute because the user knows or reasonably should know their internet messages are necessarily recorded, at least temporarily. When a user knows their messages are being recorded by the very nature of the Internet communication, that recording cannot be considered surreptitious. Setting aside the privacy issue, to find receiving an email, instant message, or Internet chat room message is a surreptitious recording would lead to the absurd result that every Internet message received constitutes eavesdropping.

In People v. Gariano, Justice Neville argued the officer there intercepted or transcribed the internet chat conversations in a "surreptitious manner" because: (1) the officer was online in his official undercover capacity, (2) the officer posed as a 15-year-old boy, (3) the officer transmitted a digital picture, purporting to be of him, but was of another police officer who was much younger, and (4) the officer denied being a policeman.41 How-ever, the definition of electronic communication requires "the interception, recording, or transcription of the electronic communication [be] accomplished by a device in a surreptitious manner."42 Therefore, it is not whether the substance of the communication is dishonest, but whether the recording or tran-scription was done secretively. The factors noted by Justice Neville go to the dishonesty of the substance of the officer’s communication, but do not address whether the recording and transcription was done secretively. The very nature of Internet communications requires them to be recorded and trans-mitted.

The fact that the officer in Gariano installed particular tools that recorded and transcribed the AOL chat conversations does not make the recording surreptitious because many chat programs now automatically record the con-versations without giving explicit notice to the other communicating user. In fact, the promotional material for the present version 6.1 of AOL Instant Messenger (AIM) provides, "AIM 6.1 lets you save your IM conversations on your computer. Now you’ll never have to worry about remembering what one of your friends said to you."43 Also, another internet chat pro-gram "Google Talk" provides, "When you use Google Talk, you can save your chat histories in your Gmail account for searching and accessing later. This feature is on by default . . . ."44 Google Talk allows you to go " ‘off the record’ if you don’t want a particular chat, or chats with a specific person, to be automatically saved in either person’s Gmail account."45 How-ever, going off the record does not prevent "the person you’re chatting with from manually saving your chats, such as by cutting and pasting."46

Implied Consent. The Illinois Supreme Court, in People v. Ceja,47 recognized the eavesdropping statute does not apply when the aggrieved party impliedly consented to the recording. The court noted consent under the eavesdropping statute is not measured by the rigorous standard of informed consent required for a defendant to waive a Fourth Amendment right.48 The court found "Consent exists where a person’s behavior manifests acquiescence or a comparable voluntary diminution of his or her otherwise protected rights."49 The court defined implied consent as "consent in fact, which is inferred from the surrounding circum-stances indicating that the party knowingly agreed to the sur-veillance."50 In Ceja, the defendant made incriminating statements in jail, which were recorded by a jail’s monitoring system. The court found the defendant impliedly consented to the recording of his conversation because the monitoring system made a loud pinging noise when recording and he knew his conversation was being overhead.51

The Proetto court found "by the act of forwarding an e-mail or communication via the Internet, the sender expressly consents by conduct to the recording of the message."52 The court analogized Internet communications to leaving a message on a telephone answering machine.53 The court noted with respect to answering machines, "we cannot imagine how one could not know and [not] intend that a message placed upon the answering machine tape be taped, and by the very act of leaving a message, expressly consented by conduct to the taping of that message."54

Illinois courts have not addressed the issue of whether the sending of an Internet message constitutes implied consent to the recording of that message, but the reasoning of Proetto is persuasive. As noted above, the very act of sending any Internet communication requires the recording and copying of the message so it can be transmitted to the designated recipient. The sender of an Internet communication likely gives implied consent to recording of the message by the intended recipients. Persons considered an "intended recipient" include any person present in an Internet chat room when the message is transmitted because the sender knows all persons present in the room at the time will receive the message.

Conclusion. The recording of the Internet chat conversation between a defendant and a police officer is not an "electronic communication" under the statute because the officer does not intend the communication to be private. In the case where the chat conversation is saved by a minor and later related to the police, a reasonable argument can be made the defendant did not have a reasonable expectation of privacy vis-a-vis the intended recipient, because he assumed the risk that the person he was communicating with was a police officer or could reveal what he said to the police. Also, in either case, the recording was not done in a surreptitious manner because the defendant knew or reasonably should have known the conversation must be "recorded" as a necessary function of Internet communication. Last, the de-fendant could be seen to impliedly consent to the recording of the chat conversation by the intended recipient, again because of the nature of Internet communi-cations.

2 Helen Gunnarsson, No Police "Eavesdropping" on Sexual Predators – Even in Cyberspace? 92 Ill.B.J. 238 (2004).

3 366 Ill.App.3d 379 (Ill.App. 1st Dist. 2006).

4 720 ILCS 5/14-2(a) (West 2004) (emphasis added).

5 Id. at 14-1(d).

6 Id. at 14-4, 14-5.

7 155 Ill.2d 47, 49 (Ill. 1986).

8 Id. at 56.

9 Id.

10 Id. at 58.

11 720 ILCS 5/14-1(d) (West 2004); P.A. 88-677, § 20 (eff. Dec. 15, 1994).

12 People v. Nestrock, 316 Ill.App.3d 1, 12 (Ill.App. 2nd Dist. 2000).

13 P.A. 91-657, § 5, eff. Jan. 1, 2000.

14 720 ILCS 5/14-1(e) (West 2004) (emphasis added).

15 The Federal Communication Commission describes cell phone cloning fraud as follows:

"Every cell phone is supposed to have a unique factory-set electronic serial number (ESN) and telephone number (MIN). A cloned cell phone is one that has been reprogrammed to transmit the ESN and MIN belonging to another (legitimate) cell phone. Unscrupulous people can obtain valid ESN/MIN combinations by illegally monitoring the radio wave transmissions from the cell phones of legitimate subscribers. After cloning, both the legitimate and the fraudulent cell phones have the same ESN/MIN combination and cellular systems cannot distinguish the cloned cell phone from the legitimate one." FCC Consumer Advisory: Cell Phone Fraud at http:/www.fcc.gov/cgb/consumerfacts/cellphonefraud.html (last visited 4/11/06).

16 91st Ill.Gen. Assem., S. Trans. May 14, 1999 at 19.

17 366 Ill.App.3d at 382.

18 Id.

19 Id. at 381.

20 Id. at 386.

21 Id. at 391 (Neville, J., dissenting).

22 Id. citing (91st Ill. Gen. Assem., House Proceedings, May 19, 1999, at 21 (statements of Representative Fritchey)).

23 91st Ill. Gen. Assem., House Bill 526 as Introduced.

24 Id.

25 Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring).

26 Hoffa v. United States, 385 U.S. 293, 302 (1966).

27 Id.

28 Id. at 303 (quoting Lopez v. United States, 373 U.S. 427, 465 (1963) (Brennan, J., dissenting)).

29 45 M.J. 406, 418 (C.A.A.F. 1996).

30 Id.

31 Id. at 419.

32 979 F.Supp. 1177, 1185 (S.D.Ohio 1997).

33 771 A.2d 823, 832 (Pa. Super. Ct. 2001).

34 Id.

35 Lopez v. United States, 373 U.S. 427 (1967).

36 720 ILCS 5/14-1(e) (West 2004).

37 www.webster.com

38 U.S. v. Councilman, 418 F.3d 67, 69-70 (1st Cir. 2005) (emphasis added).

39 Proetto, 771 A.2d at 830; See also American Civil Liberties Union v. Reno, 929 F.Supp. 824, 830 (E.D.Pa. 1996) (comprehensive history of the Internet).

40 Proetto, 771 A.2d at 829.

41 People v. Gariano, 366 Ill.App.3d at 390-91, (Neville, J., dissenting).

42 720 ILCS 5/14-1(e) (West 2004).

43 Available at

http://www.aim.com/get_aim/win/latest_win.adp (last accessed Sept. 3, 2007).

44 Available at

http://www.google.com/talk/about.html#privacy (last accessed Sept. 3, 2007).

45 Id.

46 Id.

47 204 Ill.2d 332, 347 (Ill. 2003).

48 Id. at 349

49 Id.

50 Id. at 349-50.

51 Id.

52 Proetto, 771 A.2d at 830.

53 Id.

54 Id.

Eric Waltmire is a staff attorney at the Eighteenth Judicial Circuit Court of Illinois. He recently passed the United States Patent Bar Examination and expects to be reg-istered as a patent attorney with the United States Patent and Trademark Office by the end of September. Eric has a computer science background and specializes in software and electronic technology patents. When his term ends with the court near the end of October, Eric will focus his law practice on patent prosecution and patent litigation. He maintains a website, www.waltmire.com, where he reports on developments in intellectual property law. Eric obtained his Juris Doctor, magna cum laude, from Southern Illinois University School of Law and his Bachelor of Science from Southern Illinois University majoring in computer science with a minor in business and math.


 
 
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