RECORDING A TELEPHONE CONVERSATION WITHOUT THAT PERSON'S CONSENT?
Admissibility of Privately Recorded Cell Phone Calls Under Pennsylvania Wiretap Act.
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Let’s say your Pennsylvania client wants to record his telephone conversation with another person, without that person’s consent, for use as evidence to support the client’s claim or defense. You know that under Pennsylvania’s Wiretapping and Electronic Surveillance Control Act, 18 Pa. Cons. Stat. Ann. § 5701 et seq., Pennsylvania is an “all-party consent” state. § 5704(4). That means in order to record (or in the language of the Act, “intercept”) a call, your client must get the consent of all parties to the conversation or face felony criminal penalties and civil claims for liability. 18 Pa. Cons. Stat. Ann. § 5703, 5725. And any recording made in violation of the Act would be inadmissible in a Pennsylvania court. § 5721.1. But what if your client traveled to New Jersey to make the recording from his cell phone? New Jersey is a “one-party consent” state, and so recording one’s own telephone call is generally lawful. Could you counsel your client to do that? Is that a permissible action to develop evidence on his behalf?
In several cases, Pennsylvania courts have concluded that when a call is lawfully recorded in a “one-party consent” state, the criminal penalty, civil liability, and non-disclosure provisions of Pennsylvania’s Wiretap Act do not apply, even when the person being recorded was in Pennsylvania. But those conclusions came about as a result of a conflicts-of-law analysis in which the courts balanced the geographical circumstances of the case, along with the interests of both jurisdictions in the application of their laws. For example, in Larrison v. Larrison, 750 A.2d 895 (Pa. Super. Ct. 2000), an aggrieved wife called her sister-in-law in New York (a “one-party consent” state), the sister-in-law recorded the calls without the wife’s knowledge, and the recordings were used in Pennsylvania custody proceedings as evidence against the wife. The Superior Court ruled that “New York possessed the greater interest in allowing its citizens to record telephone conversations lawfully with only the consent of the sender or receiver. While this Commonwealth has an interest in protecting its citizens from having telephone conversations recorded without proper consent, we, as the courts of this Commonwealth, have no power to control the activities that occur within a sister state.” Id. at 898.
Similarly, in Ball v. Ehlig, 70 Pa. D. & C.4th 160 (Com. Pl.), aff’d, 889 A.2d 107 (Pa. Super. Ct. 2005), the recorded calls were made from Texas (a “one-party consent” state) to the CEO and employee of a company in Pennsylvania. The claim – a dispute over the company’s salesperson’s commissions – was filed in Texas but the Pennsylvania company filed an action in Pennsylvania to recover for unlawful recording under the Wiretap Act. The court held that Texas had a greater interest in the action and so the penalties of Pennsylvania’s Wiretap Act were not triggered. See also Broughal v. First Wachovia Corp., 14 Pa. D. & C.4th 525 (Com. Pl. 1992) (one call was made from Pennsylvania to North Carolina and another call was made from North Carolina to Pennsylvania – because both were recorded in North Carolina, Pennsylvania’s Wiretap Act could not render the recordings unlawful).
These cases suggest that there are some circumstances in which a recorded call made from New Jersey to a Pennsylvania resident may not run afoul of the Pennsylvania Wiretap Act. However, if the only reason your Pennsylvania-based client makes a cell phone call from New Jersey is to circumvent Pennsylvania’s “all-party consent” rule, it is highly doubtful that the conflict-of-laws analysis would favor the application of New Jersey law. Therefore, counseling your client to travel to New Jersey to record the call would not be sound legal advice.
There may be Ways to Avoid the Wiretap Acts’s Prohibitions.
But there may be other ways to avoid the Wiretap Act’s prohibitions. First, if the call is recorded on voice mail, the caller will be deemed to have consented. In Commonwealth v. DeMarco, 578 A.2d 942, 948 (Pa. Super. Ct. 1990), the Superior Court held that it was an “irrefutable fact that any reasonably intelligent person leaving a message on an ordinary answering machine would have been aware of, and consented by conduct to, the recording of the message on the answering machine tape.” Thus, the Superior Court held that, as a matter of law, ordinary answering machine tapes fall within the mutual consent provision of the Wiretap Act. That reasoning was extended to emails and chat room conversations in Commonwealth v. Proetto, 771 A.2d 823 (Pa. Super. Ct. 2001), and to voice mail messages in Vaughn v. Unemployment Comp. Bd. of Review, No. 2471 C.D. 2011, 2012 WL 8704753 (Pa. Commw. Ct. Sept. 10, 2012).
Second, recording is not unlawful under the Act if the person doing the recording “is under 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.” 18 Pa. Cons. Stat. Ann. § 5704(17). Which means that if your client is accused of a violent crime and he, or a witness, records another person incriminating himself in that crime, the recording does not violate the Act, and it can be used as evidence in support of your client’s defense:
(b) Evidence - Any person who by any means authorized by this chapter, has obtained knowledge of the contents of any wire, electronic or oral communication, or evidence derived therefrom, may disclose such contents or evidence to an investigative or law enforcement officer and may disclose such contents or evidence while giving testimony under oath or affirmation in any criminal proceeding in any court of this Commonwealth or of another state or of the United States or before any state or Federal grand jury or investigating grand jury.
(b.1) Criminal cases - Any person who by means authorized by section 5704(17) (relating to exceptions to prohibition of interception and disclosure of communications) has obtained knowledge of the contents of any wire, electronic or oral communication, or evidence derived therefrom, may in addition to disclosures made under subsection (b) disclose such contents or evidence, on the condition that such disclosure is made for the purpose of providing exculpatory evidence in an open or closed criminal case 18 Pa. Cons. Stat. Ann. § 5717(b).
Consequently, a recorded call made to – or from – your client or someone acting on behalf may be both legal and admissible. Certainly, if the recording person resided in the “one-party consent” state, and the call was not orchestrated to occur in that state solely for purposes of evidence-gathering, it would be permissible. And if a crime of violence is charged and the conversation was recorded in a “one-party consent” state, the statutory exception to the Pennsylvania “all-party consent” rule would seem to provide a legally permissible route regardless of whether the site from which the call was made or received was chosen to avoid the “all-party consent” requirement.