We are frequently asked whether it is legal to tape someone without permission. Everyone knows that it is rude to do so. Many are surprised, however, to learn that in Pennsylvania it is also illegal.

Specifically, Pennsylvania’s Wiretapping and Electronic Surveillance and Control Act, 18 Pa.C.S. Section 5701 et seq., makes non-consensual wiretapping and electronic surveillance illegal. The Wiretap Act provides both criminal and civil sanctions for violations. This article briefly summarizes the act.

Under the Wiretap Act, a person commits a felony of the third degree — punishable by a term of imprisonment of up to seven years and a $15,000 fine — when, without permission, he intentionally intercepts (or records), endeavors to intercept or procures any other person to intercept any wire (including telephone), electronic (including computer information and e-mails) or oral (face-to-face) communications. A person likewise commits a felony of the third degree when he intentionally discloses or uses information obtained in violation of the Wiretap Act.

The act also criminalizes the possession, sale, distribution, manufacture or advertisement of devices knowing that their primary use is for the surreptitious interception of wire, electronic or oral communications.

The Wiretap Act is a “two-party consent” law, which means that, in order to be legal, all parties to a conversation must consent to being intercepted or recorded. Many states (including New Jersey) and the federal courts employ the less restrictive “one-party consent” rule, whereby only one party (i.e., the party with the tape recorder) to a conversation must consent.

Law enforcement enjoys a variety of exceptions to the Wiretap Act. For example, it is not unlawful, and no prior court approval is required, for law enforcement officers to intercept a wire, electronic or oral communication involving suspected criminal activity where one party to the communication consents. Under this exception, however, there must be prior approval by a senior law enforcement official (the attorney general, district attorney or deputy/assistant designated by each in writing) that the consenting party’s agreement was voluntary.

For example, interceptions or tapes gathered by a confidential informant are generally admissible in court. By contrast, where an undercover law enforcement officer tapes a face-to-face meeting, the recording is admissible only in a criminal prosecution involving harm done to the officer, unless the taping was done pursuant to a prior court order. Further, where an interception is to take place in the home of a non-consenting party, a court order is required.

Law enforcement officials may also intercept or tape conversations between parties who do not consent by first obtaining an order from a judge of the Superior Court. The law enforcement officials must support their application for such an order with an affidavit that sets forth, among other things, the identity of the person whose communications are to be intercepted; details about the offense being investigated; the type of communication; where the communication is to be intercepted; a statement of duration of the interception; and a statement of facts showing that other normal investigative procedures have been tried and failed, will not likely succeed or are too dangerous.

The judge may grant the wiretap upon a finding of probable cause that the person whose communications are to be intercepted will commit an enumerated offense; the specific communications sought can be obtained through the interception; normal investigative procedures have been attempted and they failed, will not likely succeed or are too dangerous to employ; the location where the interception is to take place will be or has been used in connection with the enumerated offense (or is used by the person whose communication is to be intercepted); and officers authorized to conduct the interception are appropriately trained and certified as required by the Wiretap Act.

The act limits the use of any intercepted information in court to specific circumstances, including where law enforcement officials obtained the intercepted information as authorized by the act and are using it in the proper performance of their official duties. The act also allows any person who has obtained information as authorized by the act to disclose the information to law enforcement officers or to testify about the information in any criminal or civil proceeding. Further, law enforcement officials can share legally obtained intercepted communications with other investigative or law enforcement officials so long as the disclosure is appropriate to the proper performance of their official duties.

The act allows an aggrieved person (i.e., a party to the intercepted communication or a person against whom the interception was directed) to exclude the intercepted communication if the interception violates the act. For example, where an interception is made by a confidential informant, an aggrieved person could seek to suppress the evidence arguing that the informant’s consent was involuntary.

In practice, suppression can be difficult to obtain. For example, although the statute requires that law enforcement officials demonstrate that normal investigative procedures failed or were futile, failure to do so will not lead to exclusion. The act also allows an aggrieved person the right to sue for damages if his or her wire, electronic or oral communications were intercepted, disclosed or used in violation of the act, including actual damages, punitive damages and reasonable attorney fees and costs. The act expressly waives Pennsylvania’s sovereign immunity, but it provides a sovereign defendant the defense of good faith reliance on a court order or other provisions of the act.

Conclusion

Pennsylvania’s “two-party consent” Wiretap Act can be summed up as follows: Think before you tape! Do not tape any conversation unless you have express permission of everyone involved. Conversely, if you learn that you have been taped or intercepted without granting explicit permission, you may have a means for redress. In the end, the best advice for those considering running their own surveillance operation is to stop watching so much “Law and Order” and to stay out of Radio Shack. •

Mariana Rossman, a member of Dilworth Paxson’s corporate investigations and white-collar group, is a former assistant defender for the Defender Association of Philadelphia. She focuses her practice in corporate investigations, white-collar defense and complex civil litigation. She can be reached at 215-575-7244 or mrossman@dilworthlaw.com .

David M. Laigaie, a partner at Dilworth Paxson, heads the corporate investigations and white-collar group. His areas of practice include health care fraud, securities fraud, tax fraud, export violations, pharmaceutical marketing fraud, municipal corruption, defense procurement fraud and public finance fraud. He regularly conducts internal corporate investigations. He can be reached at 215-575-7168 or dlaigaie@dilworthlaw. com.