Police Department Installation of Surveillance Software on Computers Did Not Violate the Illinois Criminal Eavesdropping Statute  

In the Illinois Appellate Court Case Hurst v. Board of the Fire and Police Commission and Reidy, the Court affirmed the Defendant Police Department's termination of one its officers for viewing pornographic images on the employer-owned mobile data terminal while on duty.  The Plaintiff filed action against the Police Department and Chief of Police, alleging that the Chief had illegally gathered evidence of Plaintiff viewing pornography in violation of the Illinois criminal eavesdropping statute by installing "surveillance software" as an eavesdropping device to intercept, record, and monitor electronic transfer of data on the Department's computer.  The Department and Chief argued that the Chief's investigation into Plaintiff's misconduct did not violate the criminal eavesdropping statute because Plaintiff's "communications" were not protected under the meaning of the statute.    

In reviewing the investigation and Plaintiff's subsequent discharge, the court noted that under the terms of the eavesdropping statute, in order for a communication to constitute a protected "electronic communication," both the sending and receiving parties must intend the communication to be private.  The court agreed with the Defendants that Plaintiff's viewing of the pornography did not constitute protected "electronic communications" under the statute because nothing suggested that the "sending party" of the pornographic images intended to keep them private.  Moreover, the court noted that Plaintiff had no reasonable expectation of privacy with regard to his use of Department equipment because the Police Department's employee manual clearly stated that Department equipment may only be used for law-enforcement purposes and further, that officers would not use the equipment that would "discredit the police department."

This case serves as a welcome reminder to all employers that employee handbooks and acceptable use policies regarding employee-use of employer equipment must be updated to place employees on notice of prohibited conduct in electronic communications.