Last month, a recorded conversation between Kanye West and Taylor Swift was posted by video on Snapchat by Kim Kardashian West. The video post contained discussions between West and Swift surrounding lyrics from West’s “Famous” soundtrack. Not knowing the conversation was being recorded, the Wests may now be criminally charged and Swift may be able to sue them civilly, under tort privacy laws.
In the instantaneous “need to know” age we live in, coupled with today’s sophisticated technology, such news has become commonplace. However, recording conversations in Pennsylvania, as well as California where the Snapchat video was posted, may subject the recording party to both civil and criminal liabilities.
Pennsylvania’s Wiretapping and Electronic Surveillance Control Act decides when the recording of telephone calls is legal and illegal in Pennsylvania. Under the Act, wiretapping is defined as any interception of a telephone transmission by accessing the telephone signal itself. Electronic eavesdropping is defined as the use of an electronic transmitter or recording device to monitor conversations without the consent of one or both parties.
Pennsylvania uses a “two-party consent” provision. This means, in order for the recorded conversation to be legal, both parties must know about the recording and must have consented to it. 18 Pa. Cons. Stat. §5703. If this is not the case, the interception or recording of a telephone call or conversation is deemed illegal, regardless of whether or not it is then disseminated to third parties.
Although telephone conversations are generally viewed as confidential communications, there are exceptions to this rule. For example, there is no expectation of privacy when the speaker leaves a message on a message machine/voicemail or communicates by speakerphone. There may also not be an expectation of privacy if the speaker is recorded speaking in a public place. In these instances, the communicator would not have an expectation of that the communication was private and not subject to interception or recording. 18 Pa. Cons. Stat. §5702. As such, the recording of such communication would not be deemed illegal.
In Pennsylvania, the illegal recording of a telephone conversation brings with it a third degree felony charge, so be careful when recording conversations and even if you think there is not expectation of privacy, always get the consent of all parties to the recorded conversation, prior to actually recording it.
Cara A. Boyanowski concentrates her practice in the field of domestic law and wills and estates. As a domestic law practitioner, she represents clients in simple and complex divorce, support, custody, alimony, step-parent adoptions, name change and same-sex divorce and custody matters. She works out of Obermayer’s Harrisburg, PA office and can be reached at 717-234-5315 or at Cara.Boyanowski@obermayer.com.