Can I Secretly Record Someone in Pennsylvania?
Pennsylvania law makes it illegal to make secret audio recordings without the consent of everyone involved. Recently, in Commonwealth v. Cline, the Pennsylvania Superior Court decided a case interpreting the statute. The Court rejected the defendant’s argument that he could not be convicted of violating Pennsylvania’s wiretapping statute where he did not know that it was illegal to make a secret audio recording. The Court upheld the defendant’s conviction for violating the Wiretap Act, 18 Pa.C.S. Sec. 5703, after the defendant was found guilty by the trial court and sentenced to 11.5 – 23 months in jail followed by a period of probation.
Commonwealth v. Cline - A Conviction Under Pennsylvania's Wiretap Act
In Cline, the defendant and his ex-wife were in the Lehigh County Courthouse for a custody conference. The conference was held in a custody master’s office. The master and a Sheriff’s Deputy were both present for the hearing along with the defendant and his ex-wife. After about half an hour of the conference, the defendant stood up and announced that he was recording the hearing with his cell phone. The Master told the defendant that he could not record in there and asked the deputy to take the defendant’s phone. The deputy tried to take the phone, but the defendant put the phone in his pocket and ran out of the room. He left the courthouse and posted the recording on Facebook.
Pennslyvania's Wiretap Statute
The defendant was arrested and charged with a violation of the Wiretap Act. Pennsylvania is a two-party consent state, meaning that both parties to an audio recording must consent to being recorded. Accordingly, the Wiretap Act makes it a felony of the third degree to make a recording of someone else without their knowledge. It states that a person is guilty of a felony of the third degree if the person:
- Intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept any wire, electronic, or oral communication;
- 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.
Thus, the statute makes it illegal both to make a secret recording and to knowingly use a recording that the defendant knows was made without the other person’s permission. In previous cases, even lawyers who used secret recordings made by their clients have been charged under the act.
The Criminal Trial
At trial, the ex-wife, Custody Master, and Sheriff’s Deputy all testified as to what the defendant did and that there were signs posted throughout the courthouse and conference room prohibiting the use of cell phones in the courthouse. The jury convicted the defendant, and the defendant was sentenced to 11.5 – 23 months in county custody and three years of probation. Following his conviction, the defendant appealed.
On appeal, the defendant argued that the evidence was insufficient to support his criminal conviction because he did not know that it was illegal to make a secret recording in Pennsylvania. Indeed, when the deputy tried to take his phone, he asked the deputy if he had done something illegal. He also testified at trial that he did not know he had broken the law.
Ignorance of the Law is Not a Defense
The Court promptly rejected the defendant’s argument. It is well-settled law in Pennsylvania that “ignorance of the law is no defense.” As a general rule, everyone is expected to know what the criminal law prohibits. Although there are some exceptions, in the vast majority of cases, not knowing that something was illegal will not be a defense for a defendant who has been charged with committing a crime.
It is important for Pennsylvania residents to know that making recordings without the consent and knowledge of all parties involved can result in a felony conviction and real jail time. There are states where only one person’s consent is needed to make a recording, but Pennsylvania is not one of them.
Experienced and Understanding Philadelphia Criminal Defense Attorneys
If you are facing criminal charges, we can help. Our Philadelphia criminal defense lawyers have successfully defended thousands of clients at the trial level on appeal. We offer a complimentary 15-minute criminal defense strategy session to anyone who is under investigation or facing criminal charges. Call 267-225-2545 to speak with an experienced and understanding defense attorney today.