Carroll v. Merrill Lynch, No. 12-1076 (7th Cir. October 16, 2012)
Late in the evening on Thanksgiving Day 2005, plaintiff called her co-worker at home and started yelling profanities. The co-worker’s wife picked up another phone on the line and, becoming alarmed at the threatening nature of the conversation, began recording the call.
Plaintiff sued under the Illinois eavesdropping statute, 720 ILCS 5/14. Defendants moved for summary judgment, arguing that the recording was covered under the “fear of crime” exception to the statute. The lower court granted the motion for summary judgment and plaintiff sought review with the Seventh Circuit. On appeal, the court affirmed the award of summary judgment.
The Illinois eavesdropping statute prohibits recording a conversation unless all parties consent to the recording. But that general rule is subject to a bunch of exceptions, such as recordings made:
under reasonable suspicion that another party to the conversation is committing, is about to commit, or has committed a criminal offense against the person or a member of his or her immediate household, and there is reason to believe that evidence of the criminal offense may be obtained by the recording
In this case, the court held that the wife had both a subjective and objective belief that the plaintiff would, at minimum, vandalize their home. Since plaintiff introduced no evidence to create a genuine issue of material fact on the question of the wife’s asserted fear of a crime being committed, summary judgment had been properly granted.
Photo courtesy Vincent Van Der Pas under this Creative Commons license.
October 18, 2012
Recording the phone calls is an interesting topic. Mass bittorent pornography plaintiffs are known for phone calls that are harassing, misleading and threatening, and it would be great to have these calls as evidence when the tide turns. Many of this calls are originated from Chicago (you know who I’m talking about).
Yet I’m sure that the threshold of conversation “committing, is about to commit, or has committed a criminal offense against the person or a member of his or her immediate household” is far from being reached and, to add insult to injury, plaintiff can go after a hapless Doe who decides to record the conversation. Therefore I warn my readers not to attempt any recording clandestinely, but be upfront with a message like “I’m going to record this conversation. If you continue, it implies your consent.” Is this enough to legitimize the recording?