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Be Careful What You Record – It Could Be a Felony!

  • Jul 19, 2017
  • Benjamin R. Picker
  • By Benjamin R. Picker

Following up on our recent blog article regarding how the First Amendment protects the right to record the police in public while they are performing their official duties, it only seems prudent to also discuss Pennsylvania law regarding when it is generally permissible to record conversations. 

Pennsylvania’s Wiretapping and Electronica Surveillance Control Act (the “Wiretapping Act”), was enacted in 1978.  Among other requirements and prohibitions, the Wiretapping Act makes Pennsylvania one of only a handful of states requiring the consent of all participants in order to audio record a conversation.  Unlike Pennsylvania, most states permit a person to record a conversation occurring in person or over the telephone as long as at least one participant consents (thereby prohibiting only surreptitious recording by third parties not involved in the conversation).  Video recording is not generally subject to the Wiretapping Act.  The Wiretapping Act certainly applies to conversations occurring in Pennsylvania, but it can be complicated when telephone conversations across state lines, or even country lines, are involved. 

One exception to the no-audio recording rule is the crime victim’s exception.  Under this exception, a victim or witness may audio record another without permission if he or she has a reasonable suspicion that the intercepted party has committed, is committing, or is about to commit a crime of violence and there is reason to believe that evidence of the crime of violence may be obtained from making such a recording. 

Most Wiretapping Act cases hinge on whether the recorded conversation can be considered an “oral communication.”  That, in turn, depends on whether the person recorded had a justified expectation that his or her communication will not be intercepted.  A person generally has a justified expectation of non-interception if he or she has a reasonable expectation of privacy under the circumstances.  For example, a person walking down a public sidewalk would not have a reasonable exception of privacy and, therefore, should fully except that his or her voice could be recorded by another without violating the Wiretapping Act.  The Pennsylvania Supreme Court most recently addressed this exact issue in its June 20, 2017 decision in Pennsylvania State Police v. Grove.  There, the Court held that because the conversations were captured “in broad daylight,” “on a public roadway,” and “within earshot and easy view of bystanders or passerby,” there was no reasonable expectation of privacy. 

Anyone who audio records a conversation in violation of the Wiretapping Act, or who discloses or uses a recording that he or she knows was illegally obtained, commits a felony of the third degree punishable by up to seven years in prison and up to a $15,000 fine.  Moreover, violation of the Wiretapping Act is grounds for a lawsuit by the person who was recorded, with remedies including actual damages or $1,000 (whichever is greater), punitive damages, and reasonable attorneys’ fees and litigation costs.  It should also be noted that recordings obtained in violation of the Wiretapping Act generally cannot be used as evidence in any legal proceeding. 

It is always advisable to consult with legal counsel before recording a conversation with another, unless you have obtained express advance written permission to do so. 

(Image - Kharchenko - adobe.stock.com)

                                 

Benjamin R. Picker

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Benjamin R. Picker

Ben has extensive experience handling securities arbitration cases and various types of commercial litigation matters.

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