Our phone system automatically records incoming calls to our bank’s phone number. Must we advise callers that we are recording their calls? We reviewed this issue when the phone system was installed and determined that recording these calls would not be considered “eavesdropping” under the Illinois Criminal Code, since the calls meet the exemption for telephone solicitations. Have the eavesdropping provisions of the Criminal Code been amended in the last seven years?

No, the relevant exemption to eavesdropping related to telephone solicitations has not been modified in the last seven years. However, we recommend that your bank consider notifying customers that their calls are being recorded, since your telephone system is recording all calls, regardless of the participants or topics discussed on the calls.

The Illinois Criminal Code generally prohibits eavesdropping, including recording and listening to phone calls — but there is an exemption for “telephone solicitations,” which should cover the bulk of calls recorded by your bank. For a phone call to qualify for this exemption, at least one party must consent to the recording and the call must be made for purposes of (1) service quality control, (2) educating or training of employees, or (3) internal research. A “telephone solicitation” is defined as: (1) soliciting the sale of goods or services, (2) receiving orders for the sale of goods or services, (3) assisting in the use of goods or services; or (4) engaging in the solicitation, administration, or collection of bank or retail credit accounts. If relying on this exemption, a business would have to post notices that you may monitor employees’ calls and provide access to personal telephone lines for employees to make unmonitored calls.

As noted above, the bulk of your bank’s calls should fall into the exemption for telephone solicitations (assuming that you have provided notice to your employees and provide access to personal telephone lines). However, because your telephone system records all calls, there is some risk that non-exempt calls could be recorded — such as personal calls made by employees or calls made for purposes of the administration of a deposit account (as one prong of the exemption is limited to credit accounts). Additionally, your bank may wish to use the recordings for purposes beyond the quality control/training/internal research purposes allowed under the telephone solicitation exemption.

Consequently, we recommend notifying customers that their phone calls are being recorded, in which case your bank could rely on customers’ implied consent to the recording rather than the telephone solicitation exemption.

For resources related to our guidance, please see:

Illinois Criminal Code, 720 ILCS 5/14-2(a) (“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;

(2) Uses an eavesdropping device, in a surreptitious manner, for the purpose of transmitting or recording all or any part of any private conversation to which he or she is a party unless he or she does so with the consent of all other parties to the private conversation;”)

Illinois Criminal Code, 720 ILCS 5/14-3 (“The following activities shall be exempt from the provisions of this Article: . . . (j) The use of a telephone monitoring device by a corporation or other business entity engaged in telephone solicitation, as defined in this subsection, to record or listen to oral telephone solicitation conversations . . . by an employee of the corporation or other business entity when:

(i) the monitoring is used for the purpose of service quality control of telephone solicitation, the education or training of employees or contractors engaged in . . . telephone solicitation, or internal research related telephone solicitation; and

(ii) the monitoring is used with the consent of at least one person who is an active party to the . . . telephone solicitation conversation being monitored.”)

Illinois Criminal Code, 720 ILCS 5/14-3(j) (“For the purposes of this subsection (j), ‘telephone solicitation’ means a communication through the use of a telephone by live operators:

(i) soliciting the sale of goods or services;

(ii) receiving orders for the sale of goods or services;

(iii) assisting in the use of goods or services; or

(iv) engaging in the solicitation, administration, or collection of bank or retail credit accounts.”)

Illinois Criminal Code, 720 ILCS 5/14-3(j) (“Business entities that use a telephone monitoring or telephone recording system pursuant to this exemption (j) shall provide current and prospective employees with notice that the monitoring or recordings may occur during the course of their employment. The notice shall include prominent signage notification within the workplace.

Business entities that use a telephone monitoring or telephone recording system pursuant to this exemption (j) shall provide their employees or agents with access to personal-only telephone lines which may be pay telephones, that are not subject to telephone monitoring or telephone recording.”)

Hurst v. Board of Fire & Police Comm’n, 2011 IL App (4th) 100964, ¶ 19 (2011) (“[A]n individual can ‘impliedly consent’ to the monitoring of his communications for purposes of the eavesdropping statute.”)