The Danger of a Secret Recording
While often portrayed on television, secretly recording a private conversation is usually against the law. Many believe by secretly recording someone they can obtain undeniable evidence of a crime. Although that might be so, it is at the cost of a conviction for illegal wiretapping.
The Wiretap Act
The Wiretap Act broadly protects the privacy of communications between people. According to the act, it is illegal to deliberately intercept or share the contents of a wire, electronic, or oral communication through a device. For example, if someone sets up a recording device not knowing it is illegal, he or she cannot claim “ignorance of the law” because the recording was set intentionally.
Wire – the use of wire or cable to relay communications. A landline telephone call uses a wire.
Oral – spoken communications where the speaker expects privacy and no recording. A private conversation between colleagues at lunch would be an example.
Electronic – communication via written words or photos. Email is an example of electronic communication.
Electronic Communications Privacy Act
This act provides protections for email communications. However, an exception allows employers to monitor work-related emails. The court has yet to specify what situations permit monitoring.
Pennsylvania State Laws on Recordings
Pennsylvania is one of twelve states that upholds two-party consent for communications recording. Although the law specifies two parties, this translates to mean all parties. To secretly record a conversation with consent from only one party is illegal.
In-person Communications: Recording an oral communication is unlawful when one person believed that the conversation was private. A conversation had in public could be subject to recording since there is no reasonable expectation of privacy.
Electronic Communications: Recording of a telephone conversation is only legal if consent of all participants is obtained. Of course, the law also provides for recording of “any transfer of signs, signals, writing, images, sounds, data or intelligence of any nature.” For example, a text message can only be shared when consent has been given.
Hidden Devices: The law specifies protections for individuals who have a reasonable expectation of privacy, whether at home or in the bathroom. It is illegal to take recordings of a person in any state of undress and to transmit those images. However, public areas are permitted to have hidden devices.
Since recording an in-person conversation or electronic communication is illegal, this activity is a felony offense. The illegally recorded party can sue to recover actual damages, punitive damages, attorney’s fees, and court cases. Actual damages result in either $100 a day for every day of violation or a total of $1000.
But Can I Share a Secret Recording with my Lawyer because of our Confidentiality Agreement?
You have a confidentiality agreement with your lawyer, but since Pennsylvania will not allow a secret recording to be used as evidence in proving a case, your lawyer will not see any reason to listen to the recording. You will need to find evidence that will be able to be used in court. Therefore, it’s likely not in your best interest to use a secret recording for any reason.
Does Federal Law Pre-Empt State Law?
When a state law differs from federal law, it’s easy to assume that the federal law holds the final decision. However, federal law provides the minimum legal protections for Americans while state law often provides more detailed and extensive protections. The federal law might pre-empt state law in situations where secret recordings occurred between two different states. However, either state may choose to enforce its laws. Most cases depend on the situation and the states involved.
Examples of Federal Law vs. State Law in Recordings
Jack Simon, a District of Columbia reporter, recorded a telephone conversation between himself and a crime witness, located in Pennsylvania, without requesting the consent of the witness. Although one-party consent is legal in DC, two-party consent is required in Pennsylvania. Since state courts can apply laws from other states, a Pennsylvania court could apply the legal requirements of DC or Pennsylvania for this case. Here, the crime witness can choose to file in either PA or DC, giving him the option of filing in the state where the law is more favorable to his claim.
A New York trial court presided over a case where reporters for The Globe recorded a conversation, with permission from one party located in Pennsylvania. In this case a prostitute in Pennsylvania called a man in New York. While Pennsylvania requires consent from all parties for a recording, New York only requires the consent of one party. The court was asked to apply Pennsylvania’s wiretap law to the situation, but the court ruled that the law of New York would apply because the injury occurred in that state. (Krauss vs. Globe International, 1998)
In Kearney v. Salomon Smith Barney (2006), the Supreme Court of California applied the California wiretap law. In this case, a business in Georgia recorded business calls with California clients without all parties’ consent. Although Georgia requires one-party consent, California requires that all parties consent to recording. The court ruled in favor of California’s wiretapping law, stating that not applying the law would “impair California’s interest in protecting the degree of privacy afforded to California residents.”
Facing employment discrimination or an illegal employment action can be a frustrating situation. However, secretly recording any type of private communication could cause you to experience legal penalties. If you think you have cause for legal action, reach out to an attorney and do not record a conversation unless you have permission from all parties. Call us at 412-626-5626 or email us at email@example.com.