Posted on April 12, 2023

Nanny Cams In An Illinois Divorce

Cameras are ubiquitous in society. People even put cameras in their own houses, “nanny cams.” People also put cameras outside their houses, “ring doorbells.” Actually, everyone carries cameras with them all the time, “smart phones.”

The problem is that recording people when they do not know they are being recorded is a crime in Illinois.

“A person commits eavesdropping when he or she knowingly and intentionally:

(1) Uses an eavesdropping device, in a surreptitious manner, for the purpose of overhearing, transmitting, or recording all or any part of any private conversation to which he or she is not a party unless he or she does so with the consent of all of the parties to the private conversation.” 720 ILCS 5/14-2(a)(1)

The inclusion of the word “surreptitious” was included after the previous statute (which did not requiring the eavesdropping device to be hidden) was declared to be unconstitutional. People v. Clark, 6 NE 3d 154 – Ill: Supreme Court 2014.

So, the “surreptitious” element is important.

Is a nanny cam surreptitious? Is a ring doorbell surreptitious? Is a cell phone camera surreptitious?

“For purposes of this Article, “surreptitious” means obtained or made by stealth or deception, or executed through secrecy or concealment.” 720 ILCS 5/14-1(g)

A nanny cam, if visible, creates footage which is not “made by stealth or deception”

A ring doorbell camera is always pretty obvious (how else are you going to find it to ring it) and, therefore, not surreptitious.

Likewise, a cell phone camera, if the other party can see it, is not surreptitious.

Furthermore, if the nanny cam doesn’t record sound…the video alone is not eavesdropping because, under the statute, an “eavesdropping device” records sound.

“An eavesdropping device is any device capable of being used to hear or record oral conversation or intercept, or transcribe electronic communications whether such conversation or electronic communication is conducted in person, by telephone, or by any other means; Provided, however, that this definition shall not include devices used for the restoration of the deaf or hard-of-hearing to normal or partial hearing.” 720 ILCS 5/14-1(b)

Even if the camera only records images not sounds, it still might be a crime.

“It is unlawful for any person to knowingly make a video record or transmit live video of another person in that other person’s residence without that person’s consent.” 720 ILCS 5/26-4(a-5)

If the nanny cam is recording someone who lives in the house (your spouse) without their permission, that is illegal in Illinois.

You can’t even record them in their house from outside the house.

“It is unlawful for any person to knowingly make a video record or transmit live video of another person in that other person’s residence without that person’s consent when the recording or transmission is made outside that person’s residence by use of an audio or video device that records or transmits from a remote location.” 720 ILCS 5/26-4(a-6)

And it doesn’t matter whose house it is…you can’t record someone in any state of undress.

“It is unlawful for any person to knowingly make a video record or transmit live video of another person’s intimate parts for the purpose of viewing the body of or the undergarments worn by that other person without that person’s consent. For the purposes of this subsection (a-10), “intimate parts” means the fully unclothed, partially unclothed, or transparently clothed genitals, pubic area, anus, or if the person is female, a partially or fully exposed nipple, including exposure through transparent clothing.” 720 ILCS 5/26-4(a-10)

Any recordings described are a felony.

“A violation of subsection (a), (a-5), (a-6), or (a-10) is a Class 4 felony.” 720 ILCS 5/26(d)

So, should you put cameras all over your house (and let your spouse know about the cameras) in order to catch your spouse doing something nefarious? ABSOLUTELY NOT.

Use some common sense. In their houses, people scratch themselves in places they would not scratch in public. People walk around naked. People have sex in their houses.

Catching adultery on camera is pointless at best and a possible civil suit at worse.

Cameras in the house may not be a crime but they probably constitute the tort of invasion of privacy.

“The elements of the cause of action [for invasion of privacy] typically are stated as: (1) the defendant committed an unauthorized intrusion or prying into the plaintiff’s seclusion; (2) the intrusion would be highly offensive or objectionable to a reasonable person; (3) the matter intruded on was private; and (4) the intrusion caused the plaintiff anguish and suffering.” Busse v. Motorola, Inc., 813 NE 2d 1013 – Ill: Appellate Court, 1st Dist., 2nd Div. 2004

It is easy to see how almost any camera footage taken in the privacy of almost any home would satisfy each of those elements. The recorded spouse can then sue the recording spouse within the divorce. “A husband or wife may sue the other for a tort committed during the marriage.” 750 ILCS 65/1

Now your case is no longer about the division of assets, support and parenting time but rather about whether you are a “peeping tom.”

If a picture is worth a thousand words…think about what a secret photo or video of your spouse really says: that you are obsessed with your spouse and do not respect their privacy or dignity as a person.

If you insist on presenting the court with footage or recordings of your spouse, you must properly authenticate the video or recording in order for the court to enter it into evidence.

If you want your spouse to say or do something dumb, just text them about it. If your spouse really is dumb, I am sure they will happily admit to whatever you want in writing via text.

If you have privacy concerns regarding cameras in or outside your home during your Illinois divorce, contact my Chicago, Illinois family law firm to speak with an experienced Illinois divorce attorney.

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Russell Knight

Russell D. Knight has been practicing family law as a Chicago divorce lawyer since 2006. Russell D. Knight amicably resolves tough cases while remaining a strong advocate for his client’s interests.

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