By Christina Pici, Staff Writer
During my internship with the Allegheny County District Attorney’s Office I had the opportunity to witness how the two-part consent law protects an individual, even though my initial reaction was to question why anyone would consent to such recording. Pennsylvania’s “two-party consent” law makes it a crime to intercept or record a telephone call or conversation unless all parties to the conversation consent.[1]
Thirty-eight states and the District of Columbia have adopted a “one-party” consent requirement, thus leaving the 12 remaining “two-party” consent states as the minority regarding the wiretap laws.[2] The 12 states that mandate “two-party” consent are: California, Delaware, Florida, Illinois, Maryland, Massachusetts, Montana, Nevada, New Hampshire, Pennsylvania, and Washington.[3] Each of these state statutes contains their own nuances. For the purpose of this short article examining two-party consent, I will be focusing on the jurisdiction I am currently in, which is Pennsylvania.
Title 18, Section 5703 of the Pennsylvania Consolidated Statutes reads
Except as otherwise provided in this chapter, a person is guilty of a felony of the third degree if h
(1) intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept any wire, electronic, or oral communication
(2) intentionally discloses or endeavors to disclose to any other person the contents of any wire, electronic or oral communication, or evidence derived therefrom, knowing or having reason to know that the information was obtained through the interception of a wire, electronic or oral communication; or
(3) intentionally uses or endeavors to use the contents of any wire, electronic or oral communication, or evidence derived therefrom, knowing or having reason to know, that the information was obtained through the interception of a wire, electronic or oral communication.[4]
To provide an initial comparison of a two-party consent state to a one-party consent state, West Virginia’s one-party consent wiretap statute provides that, “It is lawful… for a person to intercept a wire, oral or electronic communication where the person is a party to the communication or where one of the parties to the communication has given prior consent to the interception…”[5] This section of the West Virginia statute provides the critical difference with Pennsylvania’s statute. In West Virginia it not unlawful for a person to intercept a communication so long as one of the parties has consented. In contrast, in Pennsylvania all of the parties to the communication have to have consent for the interception to be lawful.
Pennsylvania’s statute is actually more protective of an individual’s privacy interest because it makes it a third-degree felony to intercept, disclose, or use the contents of any wire, electronic, or oral communication without the consent of the party from which the information is being obtained. An individual’s privacy interest in these circumstances is heightened in modern times where a majority of the population has access to a smartphone, which easily doubles as a recording device with video and voice memo applications. For example, under the Pennsylvania statute, it would be a crime, for a person to inconspicuously record a conversation he or she is having with another individual if the other person does not have knowledge that they are being recorded. Given the protection and consent requirements, I originally believed that the statute would impede law enforcement investigations by requiring two-party consent in all circumstances. However, the statute actually contains many exceptions that provide effective and necessary law enforcement considerations regarding wiretap laws.
Title 18, Section 5704 of the Pennsylvania Consolidated Statutes Exceptions to the prohibition of interception and disclosure of communications, contains 18 sections. Many of those sections and subsections grant exceptions to the general rule of two-party consent. In relevant part, the statute reads,
It shall not be unlawful and no prior court approval shall be required under this chapter for:
(2) Any investigative officer or law enforcement officer or any person acting at the direction or request of an investigative or law enforcement officer to intercept a wire, electronic or oral communication involving suspected criminal activities…where:
(ii) One of the parties to the communication has given prior consent to such interception…
(iii) the investigative or law enforcement officer meets in person with a suspected felon and wears a concealed electronic or mechanical device capable of intercepting or recording oral communications.[6]
Further, the statute provides,
It shall not be unlawful…for: any investigative or law enforcement officer, or communication common carrier acting at the direction of an investigative or law enforcement officer or in the normal course of its business, to use a pen register, trap and trace device or telecommunication identification interception device…[7]
The above two sections regarding two-party consent applicable to law enforcement are only two examples of the six exceptions specifically regarding law enforcement and police conduct in Pennsylvania’s wiretap act. I was initially skeptical of the hindrance Pennsylvania’s two-party consent laws would place on law enforcement investigations, however, I now understand that the purpose of two-party consent laws is not to impede law enforcement, but rather, to place an emphasis on protecting an individual’s very legitimate privacy interest. Pennsylvania’s two-party consent law is a well-balanced competing of interests, focused both on individual privacy protection and effective law enforcement.
For examples on Pennsylvania’s two-party consent statute “in action” see United Tel. Co. v. Pennsylvania PUC, 676 A.2d 1244 (1996) (the court found that the Pennsylvania Public Utility Commission was not exempt from the Wiretap Act, and therefore, could not direct a telephone company to allow PUC staff to monitor the telephone companies customer service and collection representatives during calls with customers, without requiring authorization from the company’s employees). But See Commonwealth v. Byrd, 185A.3d 1015 (2018) (the court found that the trial court erred in granting a defendant’s motion to suppress all recordings of his jail visits because the two-party consent exceptions applied as before the inmate and visitor conversed, a recording stated that they may be monitoried or recorded and the parties acknowledged the recording).
[1] 18 Pa. Con. Stat. Ann. § 5703 (2018).
[2] Mathiesen, Wickert & Lehrer, S.C., Laws On Recording Conversations In All 50 States, (October 24, 2019), https://www.mwl-law.com/wp-content/uploads/2018/02/RECORDING-CONVERSATIONS-CHART.pdf.
[3] Id. at 2.
[4] § 5703.
[5] W. Va. Code Ann. § 62-1D-3 (2007).
[6] § 5704(2).
[7] Id.
