Thirty-eight states and the District of Columbia have introduced a “unipart” consent requirement, so the remaining 12 “bipartisan” states are in the minority in terms of wiretap laws.  The 12 states requiring “bipartisan” consent are: California, Delaware, Florida, Illinois, Maryland, Massachusetts, Montana, Nevada, New Hampshire, Pennsylvania and Washington.  Each of these laws contains its own nuances. For the purposes of this brief article examining bipartisan consent, I will focus on the jurisdiction I am currently in, which is Pennsylvania. The two sections above on bipartisan consent that applies to law enforcement are just two examples of the six exceptions that specifically relate to law enforcement and police conduct in Pennsylvania`s wiretap law. I was initially skeptical about the obstacle Pennsylvania`s bipartisan consent laws would pose to law enforcement investigations, but I now understand that the purpose of bipartisan consent laws is not to impede law enforcement, but rather to focus on protecting an individual`s very legitimate privacy interest. Pennsylvania`s bipartisan consent bill is a balanced competition of interests that focuses on both protecting the privacy of individuals and effective law enforcement. Pennsylvania law better protects an individual`s right to privacy because it makes interception, disclosure, or use of the content of wireline, electronic, or oral communications without the consent of the party from whom the information is obtained a third-degree felony. An individual`s interest in privacy in these circumstances is heightened in this day and age when the majority of the population has access to a smartphone that can easily be used as a recording device with video and voice memo applications. For example, under Pennsylvania law, it would be a crime for a person to discreetly record a conversation they have with another person if the other person does not know it is being recorded. Given the protection and consent requirements, I originally believed that the law would impede law enforcement investigations by requiring the consent of both parties in all circumstances.
However, there are many exceptions in the Act that provide effective and necessary enforcement considerations with respect to wiretap laws. Michael Horvath is a member of the firm`s Corporate Services team, which helps business owners navigate local municipal and real estate laws. Pennsylvania is a “two-party consenting state,” which generally means that both parties to a private conversation1 must be aware of and agree to the recording of that conversation. Not all states are “bipartisan consent states,” as some states (and federal laws) only require “consent of a party,” which allows one person to record a conversation without the other person`s knowledge. In summary, Pennsylvania generally prohibits the interception of conversations and phone calls, as do most states. Also, in Pennsylvania, you must have the consent of all parties to a conversation before you can record it, otherwise it is considered a third-degree felony, unless the situation falls under another exception to the Wiretap Act. The most important lesson of this article should be to understand what counts as consent in Pennsylvania. If you know someone is recording you and you don`t want to be recorded, you shouldn`t speak up and end the conversation.
Once you discover that you are being eavesdropped or that a reasonable person in your place would know that they are being recorded, give your consent and destroy the legal remedies for yourself. Pennsylvania`s wiretapping bill is a “bipartisan consent bill.” Pennsylvania criminalizes the interception or recording of a phone call or conversation unless all parties to the conversation agree. See 18 Pa. Cons. Stat. § 5703 (the link is to the whole code, select Title 18, Part II, Article F, Chapter 57, Subchapter B, then the specific provision). Pennsylvania state courts generally prohibit the use of recording devices in the courtroom, both at the court and appeals levels. However, individual judges can approve recordings of civil trials without a jury if both parties agree to the lawsuit. In this case, individual witnesses may object to the recording and be excluded from the report. District courts may also issue additional regulations. While Pennsylvania remains strict on wiretapping, the courts have been clearly lenient on the issue of consent.
If you are in a situation where you are registered, you cannot continue to speak or you are essentially giving your consent. Once you find out you`re being recorded, it`s important to immediately say “stop recording” or not talk at all. When you do, you never have to worry about someone catching your words and using them against you. But if someone tries, they just commit a crime! Under Pennsylvania law, a person is guilty of a third-degree felony if they intentionally intercept wireline, electronic, or verbal communication, attempt to intercept or incite another person to intercept or attempt to intercept them. 18 Pa.C.S.A. Section 5703(a). Simply put, if you`re trying to record a conversation, you`ve committed a crime in Pennsylvania. This law, known as Pennsylvania`s Wiretap Act, also makes it illegal to share the contents of an illegal recording with someone else, and also makes it illegal to use such a recording against the registrant. Id.
§ b) to c). Well, none of this is unusual (although it may seem so).