It is a violation of Pennsylvania’s Wiretapping and Electronic Surveillance Control Act (Wiretap Act) to record without the consent of the other party. While Federal wiretapping law only requires the consent of one party to the conversation, states have their own wiretap laws which may be more restrictive.
Pennsylvania is a two-party consent state. This means that you must have permission of the other party (actually all other parties) before you can record a conversation. In fact, according to the Pennsylvania Wiretap Act, it is a third-degree felony to:
intentionally intercept, endeavor to intercept, or procure any other person to intercept or endeavor to intercept any wire, electronic or oral communication;
Intentionally disclose or endeavor to disclose to any other person 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 or endeavor to use 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.18 Pa.C.S. § 5703.
Thus, in Pennsylvania, it is illegal to secretly record a telephone call. It is also important to note that there are three separate actions that violate the law: intercepting (recording) the communication; disclosing the content of the communication; and using the content of the communication.
It is also important to note that this applies to “wire, electronic, or oral communication.” These terms are defined by the statute, but in simplest terms: wire communication includes phone calls; oral communication includes any statement made by a person with a reasonable expectation that such communication is private and not being recorded; and electronic communication includes email.
The Pennsylvania Wiretap Act does permit recording a conversation “where all parties to the communication have given prior consent to such interception.” 18 Pa.C.S. § 5704(4). However, it is important to understand what constitutes consent and how to obtain it.
Another time the Pennsylvania Wiretap Act may permit recording is when the communication is made in public and there is no reasonable expectation that any statements made are private. An example of this was discussed by the Superior Court of Pennsylvania in the case N.F. n/k/a N.H. v. B.F., 201 A.3d 896 (2018). In that case, Mother testified she was aware she was being videotaped in a public playground and parking lot, where at least five other people were present and listening to her, including Father, Father’s brothers, the parties’ children. The court held that the recording of Mother’s statements was not subject to the Wiretap Act because she had no justifiable expectation that her statements were private. However, it is wise NOT to record without clearly stated consent from all other parties because exceptions to this law are limited and each case is unique.
Today, when most people carry cell phones and we have nearly constant ability to record, it is important to be aware of the Wiretap Act and not to yield to the temptation to record your ex. A “voice memo” recorded on your cell phone is a recording under Pennsylvania law. Commonwealth v. Smith, 136 A.3d 170 (Pa. Super. 2016). Whether it is bad behavior or agreeing to a custody arrangement, do not record covertly to bring as evidence to your lawyer. This type of evidence is not allowed in court and the punishment for violation of the Wiretap Act is significant. In addition to criminal penalties, you may be subject to civil suit, fines, and attorneys’ fees. It is also important to be aware that the Pennsylvania Wiretap Act has broader ramifications than just telephone calls. If you are concerned about gathering evidence, ask a lawyer what kind of evidence you can legally obtain.
The divorce and family law attorneys of Shemtob Draganosky Taylor Stein, PC can guide you through all of your divorce and family law matters including gathering evidence and advising regarding the Pennsylvania Wiretap Act. Call our family lawyers in Montgomery and Bucks Counties at (215) 544-3974 for a confidential discussion.