Technology, namely the ubiquitous cell phone, has made the ability to (stealthily) record otherwise private conversations much easier. In Pennsylvania, doing so will expose you to a potential felony violation of our Wiretap Act. Whether it’s the tech-savvy teen or the disgruntled spouse, many a client is alleged to have violated this statute, most without even realizing it. Here’s what to avoid.
Two-Party Consent State
Pennsylvania is a “two-party consent state,” meaning, generally, that both parties to a private conversation[efn_note]The oral communication must be uttered by the non-consenting party under circumstances possessing a reasonable expectation of privacy. 18 Pa.C.S. § 5701.[/efn_note] need to be aware of, and consent to, the recording of that conversation. Not all states are “two-party consent” states, as some state laws (and federal law) require only “one-party consent”, which allows one person to record a conversation without the other person knowing it.
One-Party Consent State
An example of a “one-party consent state” is New York, which yielded a recent story of some interest involving a certain attorney recording his conversations with a certain client. Leaving aside any ethical violations that may have been committed by that attorney, those conversations would be admissible in New York and in federal court. (Aside to attorneys: if you ever feel the need to record conversations with a client, fire the client. Immediately. Aside to clients: if you ever suspect your lawyer is recording your conversations, fire the lawyer. Immediately.)
Understanding all the intricacies of Pennsylvania’s Wiretapping and Electronic Surveillance Act, colloquially referred to as “The Wiretap Act,” 18 Pa.C.S. §5701 et seq., requires an electronic geek’s vocabulary. This article will make no such effort. Instead, below are a few quick pointers to consider before using that all-too handy “voice recorder app” on your cell phone.
18 Pa.C.S. 5703 “Interception, disclosure or use of wire, electronic or oral communications” (see what I mean about the electronic geek vernacular?) makes it a felony of the third degree to:
- Intercept any wire, electronic or oral communication;[efn_note]In English: “eavesdrop or secretly record a phone conversation or oral conversation or steal electronic communications.”[/efn_note]
- Intentionally disclose to other persons the contents of any wire, electronic or oral communication, or evidence derived therefrom, knowing or having reason to know that the information was obtained through the interception of a wire, electronic or oral communication; or
- Intentionally use…the contents of any such interception.
Importantly, specifically within the context of recording a conversation, there are three ways to violate this statute: by illegally recording the conversation, by disclosing the contents of that illegal recording, or by trying to use the illegal recording.
There are numerous exceptions to the Wiretap Act violation, which are found at §5704 of the Act. They include:
- Law enforcement, or individuals acting at the direction of law enforcement, who are otherwise complying with the requirements of the Act;
- Police and Emergency communication systems (i.e. 911);
- Prison phone systems;
- Where all parties to the communication consent to the recording;
- Public utilities, entities providing electronic communication services, telemarketers or telephonic customer service;
- School buses, for disciplinary or security reasons (assuming other requirements of the Act are met);
- A victim, witness, or private investigator to record an oral conversation if they reasonably suspect that the party being recorded is committing, or about to commit, a crime of violence.
Absent any of the above exceptions, it is important to understand this law to avoid committing a felony offense. In this age of technology, it can be too easy to unknowingly slip up. So, unless you’re recording in a public place (e.g., a video of an embarrassing or entertaining incident at your local superstore) or with the consent of the other party involved (it is suggested, confirmed on the tape recording), don’t do it. And if someone wants to share a recording like that with you, don’t listen to it.
Peter E. Kratsa is a criminal defense attorney with over 20 years of experience defending individuals and entities accused of criminal activity. His practice includes representation of clients in state and federal criminal trials, grand jury investigations, internal investigations, appeals, state and federal regulatory matters, and juvenile delinquency matters.