Forget about "Big Brother", start worrying about
your "little sister".
With I-Phones and I-Pads empowering everyone to record
and disseminate all communications, privacy is rapidly evaporating and everything
you say and do may be used against you.
However, the wiretap laws not only make certain
recordings unusable in litigation, but subject those making and subsequently using
the recordings to criminal and civil penalties.
Further, with rapidly developing technology and issues
such as "multiple use smart phones", "shared phone plans", "spyware
on children’s phones", and "GPS location applications", most
existing wiretap laws require immediate and continued updating.
Wiretapping
Laws Overview
Pennsylvania’s Wiretapping and Electronic Surveillance
and Control Act, 18 Pa. C.S.A. §§5701 et
seq. ("Act") extends the federal Electronic Communications
Privacy Act, 18 U.S.C. §§2510 et
seq., ("ECPA") wire, oral, electronic and stored communications' protections.
The Act makes it illegal to record any person
(including your spouse or child) or for any person (including your attorney) to
attempt to use those communications in any way, including in litigation. Specifically, the Act bars intentionally: (1) intercepting,
endeavoring to intercept, or procuring any other person to intercept
any wire or electronic or oral communication; (2)
disclosing or endeavoring to disclose any wire or electronic communication's contents if aware, or
having reason to be aware, that information was obtained through wire, electronic, or oral
communication's interception; and (3) using
or endeavoring to use wire, electronic, or oral communication's contents, or
evidence derived there from, if aware, or having reason to be aware that information was obtained
through wire, electronic, or oral communication's
interception.
However, it is only an Act violation to record an oral
communication if speaker has a "reasonable expectation of privacy". For example, because someone yelling at another
in a public place has no reasonable privacy expectation, that conversation's
recording would not be an Act violation.
Confusingly, the statute is limited to actual or
attempted interception of oral, electronic or wire communications; thus video
recordings, without sound, are not currently subject to the Act.
Also, the Act exempts certain communications recording
and sharing from its coverage. First, under the Act, you may record communications if
you have the consent of all parties to the communication (unlike the ECPA
and New Jersey statute which only require one–party consent).
Second, the Act permits "Police and Emergency
Communications Systems Recordings" including 911 tapes.
Third, any victim, witness, or private detective may
intercept a communication if under a reasonable suspicion that intercepted
party is committing, about to commit, or has already committed a crime of
violence and evidence of that crime of violence may be obtained from interception.
Criminal and
Civil Penalties
Act violations are a third degree felony punishable by
up to 7 years in prison.
The Act also imposes civil penalties including actual
damages (computed at $100/day or $1,000, whichever is higher), punitive damages,
and reasonable attorneys’ fees and costs.
The Act also criminalizes unlawfully accessing stored
communications including e-mails, voicemails and text messages. Specifically, it is an offense to obtain,
alter or prevent authorized access to a wire or electronic communication while in
electronic storage by intentionally accessing, without authorization, a
facility through which an electronic communication service is provided or
exceeding the scope of one’s "facility access authorization".
This Act also makes it illegal to read or use a spouse
or significant other’s e-mails or text messages, the penalties for which range
from $5,000-$250,000 fines and imprisonment.
Wiretapping
Laws and Developing Technology
Two recent Pennsylvania Act cases - Commonwealth v.
Spence, 91 A.3d 44 (Pa. 2014) and Commonwealth v. Diego, 2015 PA
Super 143, ____ A.2d ____ (Pa. Super. 2015) - address wiretapping and the Act's definition of
"device".
Spence involved
an I-Phone (which, as falling within "telephones 'device' definition
exception", was deemed outside of the Act) and Diego regarded an I-Pad
(determined to be an intercepting device outside of Act's telephone exception despite
having identical capabilities of - and being used to text in the same manner as
- - a smart phone).
Spence and Diego's
seemingly contradictory holdings point up the need to revise the Act and wiretap
laws to accommodate modern technology and issues such as "multiple use smart
phones", "shared phone plans", "spyware on children’s
phones", and "GPS location applications".
