Of late I have experienced several instances when someone on a phone call has mentioned in an off-hand way, long after the start of the call, that I was being recorded. I wasn’t particularly upset in either case but I was a bit taken aback to realize the people calling me hadn’t even offered a by-your-leave. It never once occurred to me that someone was recording what I was saying.
As it happens, I am in Pennsylvania. The people with whom I was speaking either knew I was in Pennsylvania or were in Pennsylvania too. And in Pennsylvania, those people committed a very serious criminal offense; they clearly violated the wiretap laws.
Dual Party Consent
In many states, as long as one party is aware of the recording, everything is copacetic. But it is very important to be aware that quite a few states require dual party consent. Dual party consent means just what it sounds like, both parties have to know about and consent to the recording. Consent is assumed if an announcement is made at the start of the call and both parties stay on the call. That is how so many customer service departments are able to record the calls, and that is exactly why the announcement is made. Even if you aren’t in a dual party consent state, it just seems polite to me to tell someone, “hey, I’m recording you;” unless, of course, there is a reason not to do so.
Here in Pennsylvania, it doesn’t really matter if there is a reason you don’t want to tell me you are recording me. There are some exceptions, but generally speaking if you aren’t an officer of the law with a warrant (or have some other legal right to record) you had best not hit that record button; unless you yourself want to be recorded, from jail. No dual party consent required there, because you are supposed to know you have no expectation of privacy.
The Law
There are federal wiretap laws as well as state wiretap laws. The federal laws are the minimum, and they aren’t all that lenient either, though they do not require dual consent. Allow me to explain, for those who aren’t attorneys, that a very basic way to look at the law is that states can give more rights than the federal government; but may not take more rights away. What this means is that if the federal government has said X is the minimum, then the state may not say, well tough, Z. But the state may certainly say, X isn’t enough for us, we also want to give you A. That is why sometimes a state passes a law that restricts something, someone sues and it ends up in federal court as a federal constitutional issue.
My State Rules, Right?
You might ask, well if I am calling from a state that is not dual consent then I am covered by my state’s law, right? The answer would be maybe, maybe not. If the person who didn’t give consent successfully sues in a dual consent state, then chances are pretty good the dual consent law will apply. And if you were recorded against your will on a conference call that had 15 different people in 15 different states, which state would you sue in? So my question is; do you feel lucky?
The Statute
The Pennsylvania law in question is Chapter 57 – Wiretapping and Electronic Surveillance, Subchapter B. (Scroll down.)
Dispositive here is 18 Pa. Cons. Stat. § 5703(1) which deals with interception (i.e. recording) of a communication.
§ 5703. Interception, disclosure or use of wire, electronic or oral communications. Except as otherwise provided in this chapter, a person is guilty of a felony of the third degree if he:
(1) intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept any wire, electronic or oral communication;
Note wiretap violations are a felonious offense.
How do I know that interception means recording? The definition tells me. Again citing the statute:
“Intercept.” Aural or other acquisition of the contents of any wire, electronic or oral communication through the use of any electronic, mechanical or other device.
Non-electronic oral communications may or may not have an expectation of privacy. So if you plan to record someone when you are face-to-face, you best make sure he doesn’t have an expectation of privacy before you hit that record button, or you might find yourself in quite a bit of trouble. Again citing the statute, 18 Pa. Cons. Stat. § 5702.
“Oral communication.” Any oral communication uttered by a person possessing an expectation that such communication is not subject to interception under circumstances justifying such expectation. The term does not include any electronic communication.
Along with the criminal penalties, which can be pretty severe, the statute provides for civil penalties. Those penalties include actual damages, $100 per day, or $1000, whichever is greater, along with punitive damages, litigation costs and attorney’s fees. 18 Pa. Cons. Stat. § 5725.
Conclusion
So, before you record that call, or that conversation, it might be wise to stop and think. Something as simple as saying, “I am recording this conversation,” could be the difference between a world of hurt, and just another day at the office.
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