Archive for January, 2016

Spotlight Issue: Wiretap Violation – When am I allowed to record conversations?

Tuesday, January 19th, 2016

The laws on recording people and conversations are contained in Pennsylvania Crimes Code Chapter 57 – Wiretap and Electronic Surveillance. PA wiretap law prohibits the intentional interception, disclosure or use of any wire, electronic or oral communication. A wiretap violation is graded as a felony of the third degree and is punishable by a maximum permissible sentence of 7 years of incarceration and a $15,000 fine.

Pennsylvania is a two-party consent state which means that both parties have to consent to the recording of private conversations whether in person or over the phone. However, there are many exceptions to this general consent rule.

The first question is whether a conversation is private and therefore requires protection under the PA wiretap law as an “oral communication.” Oral communication is defined as a communication uttered by a person possessing an expectation that such communication is not subject to interception under circumstances justifying such an expectation. A conversation can be recorded by one party if the other party does not have a reasonable expectation a privacy in the conversation. For example, a person yelling in public probably does not have a reasonable expectation of privacy in their words. By contrast, a person having a quiet, two-person conversation in his home probably does have an expectation of privacy in what he says.

As mentioned above, there are exceptions to the two-party consent rule for recording. These exceptions are contained in Section 5704. There are exceptions made for law enforcement officers and there is also a crime victim’s exception in Section 5704 (17). The crime victim’s exception says that a victim or witness may intercept the contents of any wire, electronic or oral communication if that person has a reasonable suspicion that the intercepted party is committing, about to commit or has committed a crime of violence and there is reason to believe that evidence of the crime of violence may be obtained from the interception.

Unless you believe that you fall under the crime victim’s exception, if you are having a conversation in your home, it is not advisable to try to secretly record the other person. The act of recording could constitute a felony offense. Further, it is not advisable to record a phone call if the person on the other end of the line has not consented to the recording. If you have obtained evidence in violation of Pennsylvania’s wiretap laws, you will not be able to use that evidence in court.

If you’ve been charged with a wiretap violation, you need a knowledgeable Berks County lawyer on your side. Contact our Reading, PA criminal attorneys today at 610-372-5128 or email us at info@enmlaw.com.