Do you watch The Good Wife? The show follows Alicia Florrick, a lawyer in Chicago and the wife of Gov. Peter Florrick. In an episode that aired on March 16, the characters were attending an American Bar Association (ABA) meeting in New York City. Alicia’s former partner Will Gardner retained another lawyer, Elsbeth Tascioni, to represent him in an investigation by the Office of Public Integrity (OPI) into his purported involvement with alleged voter fraud by Gov. Florrick. During a confrontation at the ABA meeting, Tascioni secretly records a conversation she has with an OPI agent, Nelson Dubeck, in which she gets him to admit that he does not currently have any proof of voter fraud and that he believes Florrick is guilty simply by virtue of being a governor of Illinois.

When Tascioni reveals that she has recorded their conversation, Dubeck insists that Tascioni is subject to prosecution because she did not have his permission to make that recording. In a line that only a privacy litigator could love, Tascioni reminds him that that is not true in New York, a one-party consent state: “Two-party consent is the law in Illinois, but this is New York – one-party consent is enough here, and I am one party, and I give my consent.”

Only four days after this episode aired, Tascioni’s clever maneuver would have been legal in Illinois, too, when the Illinois Supreme Court struck down as unconstitutional the Illinois two-party consent law. People v. Clark, 2014 IL 115776 (March 20, 2014).

What happened in Clark, and how will that impact the other two-party consent laws? After all, California, Connecticut, Florida, Maryland, Massachusetts, Montana, Nevada, New Hampshire, Pennsylvania and Washington also require the consent of all parties to the communication. But, in particular, what does Clark mean for California’s infamous two-party consent law?

Nothing, really.

The Clark Decision

In Clark, the defendant recorded conversations in court between himself and an attorney representing the opposing party in a child support matter. Clark claimed he made the recordings to preserve the record of the case because there was no court reporter present and argued that he had a First Amendment right to do so. The Illinois statute at issue, 720 ILCS 5/14-2(a)(1)(A), prohibited “[K]knowingly and intentionally us[ing] an eavesdropping device for the purpose of hearing or recording all or any part of any conversation or intercept[ing], retain[ing], or transcrib[ing] electronic communication unless he does so . . . with the consent of all of the parties to such conversation or electronic communication.”

Crucially for the result in Clark, the statute was amended in 1994 to define “conversation” as “any oral communication between 2 or more persons regardless of whether one or more of the parties intended their communication to be of a private nature under circumstances justifying that expectation.” 720 ILCS 5/14-1(d) (emphasis added).

Noting that courts have recognized a facial challenge in the First Amendment context whereby a law may be invalidated as overbroad if a substantial number of its applications are unconstitutional, the Clark court held that the relevant section of the Illinois eavesdropping statute was overbroad. Why? Because “the statute burdens substantially more speech than is necessary to serve the interests the statute may legitimately serve.” Due to the 1994 amendments, “the statute … essentially deems all conversations to be private and not subject to recording even if the participants themselves have no expectation of privacy … It criminalizes a whole range of conduct involving the audio recording of conversations that cannot be deemed in any way private.”

How California Differs

California’s two-party consent law does not suffer from the defect that doomed Illinois’s two-party consent law in Clark.

California’s law is particularly notorious, and significant even for organizations outside California. A 2006 California Supreme Court choice of law decision (Kearney v. Salomon Smith Barney, Inc., 39 Cal. 4th 95 (2006)) held that the California law requires two-party consent for recording or eavesdropping on telephone conversations, even if only one of the participants is in a two-party consent state.

California Penal Code section 632 imposes criminal penalties on “[e]very person who, intentionally and without the consent of all parties to a confidential communication, by means of any electronic amplifying or recording device, eavesdrops upon or records the confidential communication. Importantly, however, and unlike Illinois, California law limits the definition of the term “confidential communication” to a “communication carried on in circumstances as may reasonably indicate that any party to the communication desires it to be confined to the parties thereto,” and explicitly “excludes a communication made in a public gathering or in any legislative, judicial, executive or administrative proceeding open to the public, or in any other circumstance in which the parties to the communication may reasonably expect that the communication may be overheard or recorded” (emphasis added).

Because California’s—and several other states’—two-party consent laws are narrowly focused on the protection of truly private conversations, they likely would not have barred Clark’s courthouse conduct in the first instance.

Of course, it remains to be seen, in California and elsewhere, what happens in close cases where it is far less clear whether all the parties have a reasonable expectation of privacy in the conversation. In the meantime, unless and until the Illinois legislature crafts a new, more narrowly tailored law focused on protecting privacy interests—when the parties are all in Illinois, this conversation may be recorded with or without your consent.

Written By

Tanya Forsheit, CIPP/US


If you want to comment on this post, you need to login.


Board of Directors

See the esteemed group of leaders shaping the future of the IAPP.

Contact Us

Need someone to talk to? We’re here for you.

IAPP Staff

Looking for someone specific? Visit the staff directory.

Learn more about the IAPP»

Daily Dashboard

The day’s top stories from around the world

Privacy Perspectives

Where the real conversations in privacy happen

The Privacy Advisor

Original reporting and feature articles on the latest privacy developments

Privacy Tracker

Alerts and legal analysis of legislative trends

Privacy Tech

Exploring the technology of privacy

Canada Dashboard Digest

A roundup of the top Canadian privacy news

Europe Data Protection Digest

A roundup of the top European data protection news

Asia-Pacific Dashboard Digest

A roundup of the top privacy news from the Asia-Pacific region

Latin America Dashboard Digest

A roundup of the top privacy news from Latin America

IAPP Westin Research Center

Original works. Groundbreaking research. Emerging scholars.

Get more News »

IAPP Communities

Meet locally with privacy pros, dive deep into specialized topics or connect over common interests. Find your Community in KnowledgeNet Chapters, Sections and Affinity Groups.

IAPP Job Board

Looking for a new challenge, or need to hire your next privacy pro? The IAPP Job Board is the answer.

Join the Privacy List

Have ideas? Need advice? Subscribe to the Privacy List. It’s crowdsourcing, with an exceptional crowd.

Find a KnowledgeNet Chapter Near You

Talk privacy and network with local members at IAPP KnowledgeNet Chapter meetings, taking place worldwide.

Find more ways to Connect »

Find a Privacy Training Class

Two-day privacy training classes are held around the world. See the complete schedule now.

The Privacy Core™ Library Has Evolved

Privacy Core™ e-learning essentials just expanded to include seven new units for marketers. Keep your data safe and your staff in the know!

Online Privacy Training

Build your knowledge. The privacy know-how you need is just a click away.

Upcoming Web Conferences

See our list of upcoming web conferences. Just log on, listen in and learn!

Train Your Team

Get your team up to speed on privacy by bringing IAPP training to your organization.

Let’s Get You DPO Ready

There’s no better time to train than right now! We have all the resources you need to meet the challenges of the GDPR.

Learn more »

CIPP Certification

The global standard for the go-to person for privacy laws, regulations and frameworks

CIPM Certification

The first and only privacy certification for professionals who manage day-to-day operations

CIPT Certification

The industry benchmark for IT professionals worldwide to validate their knowledge of privacy requirements

FIP Designation

Recognizing the advanced knowledge and issue-spotting skills a privacy pro must attain in today’s complex world of data privacy.

Certify Your Staff

Find out how you can bring the world’s only globally recognized privacy certification to a group in your organization.


The IAPP’S CIPP/E and CIPM are the ANSI/ISO-accredited, industry-recognized combination for DPO readiness. Learn more today.

Learn more about IAPP certification »

Are You Ready for the GDPR?

Check out the IAPP's EU Data Protection Reform page for all the tools and resources you need.

IAPP-OneTrust PIA Platform

New U.S. Government Agency privacy impact assessments - free to IAPP members!

IAPP Communities

Meet locally with privacy pros, dive deep into specialized topics or connect over common interests. Find your Community in KnowledgeNet Chapters, Sections and Affinity Groups.

Privacy Vendor List

Find a privacy vendor to meet your needs with our filterable list of global service providers.

More Resources »

Europe Data Protection Intensive 2017

The Intensive is sold out! But cancellations do happen—so hurry and get on the wait list in case more seats become available.

Global Privacy Summit 2017

The world’s premier privacy conference returns with the sharpest minds, unparalleled programs and preeminent networking opportunities.

Canada Privacy Symposium 2017

The Symposium returns to Toronto this spring and registration has opened! Take advantage of Early Bird rates and join your fellow privacy pros for another stellar program.

The Privacy Bar Section Forum 2017

The Privacy Bar Section Forum returns to Washington, DC April 21, delivering renowned keynote speakers and a distinguished panel of legal and privacy experts.

Asia Privacy Forum 2017

The Forum returns to Singapore for exclusive networking and intensive education on data protection trends and challenges in the Asia Pacific region. Call for Speakers open!

Privacy. Security. Risk. 2017

This year, we're bringing P.S.R. to San Diego. The Call for Speakers is now open. Submit today and be a part of something big! Submission deadline: February 26.

Europe Data Protection Congress 2017

European policy debate, multi-level strategic thinking and thought-provoking discussion. The Call for Speakers is open until March 19.

Sponsor an Event

Increase visibility for your organization—check out sponsorship opportunities today.

More Conferences »

Become a Member

Start taking advantage of the many IAPP member benefits today

Corporate Members

See our list of high-profile corporate members—and find out why you should become one, too

Renew Your Membership

Don’t miss out for a minute—continue accessing your benefits

Join the IAPP»