Recording police in Pennsylvania turns on the Wiretap Act privacy test

The offense sits in 18 Pa.C.S. § 5703, which makes a person guilty of a felony of the third degree for intentionally intercepting, disclosing or using any wire, electronic or oral communication. Third-degree felony grading means imprisonment of up to seven years under 18 Pa.C.S. § 1103(3) and a fine of up to $15,000 under 18 Pa.C.S. § 1101(3). Pennsylvania is unusual in reaching that grade: the Wiretapping and Electronic Surveillance Control Act treats a surreptitious recording of a private conversation as a felony rather than a summary or misdemeanor matter, which is why the definitional question below is worth understanding before pressing record.

Everything turns on the phrase "oral communication." Section 5702 defines it as any oral communication uttered by a person possessing an expectation that such communication is not subject to interception under circumstances justifying such expectation. Two conditions have to hold at once: the speaker must actually expect not to be recorded, and the circumstances must justify that expectation. Words shouted at a traffic stop on a public highway, in a shopping center parking lot, or at a protest in view of passers-by fail the second condition, so recording them intercepts nothing the chapter protects. Officers who lower their voices in a private home, in a hospital room, or behind a closed door are in different territory, and so is a bystander who leaves a phone running to capture a conversation between two other people who do not know it is there.

The verb matters too. Section 5702 defines "intercept" as the aural or other acquisition of the contents of a wire, electronic or oral communication through the use of an electronic, mechanical or other device, and defines "aural transfer" as a transfer containing the human voice at any point between and including the point of origin and reception. The Act is aimed at capturing what is said. A camera pointed at an arrest that records images and no sound acquires the contents of no communication, which is why the practical exposure in Pennsylvania comes from the microphone rather than the lens.

Section 5704 lists the exceptions, and only a few are of any use to a member of the public. Paragraph (4) permits interception where all parties to the communication have given prior consent, which is the all-party consent rule stated affirmatively. Paragraph (17) lets any victim, witness or private detective licensed under The Private Detective Act of 1953 intercept a communication when that person is under a reasonable suspicion that the intercepted party is committing, is about to commit or has committed a crime of violence and there is reason to believe evidence of it may be obtained. That is narrow by design: "crime of violence" is a closed list in § 5702 running to murder, voluntary manslaughter, aggravated assault under § 2702(a)(1) or (2), strangulation under § 2718, kidnapping, rape, robbery, arson and burglary of an occupied structure, so an ordinary rude traffic stop is nowhere near it.

Police scanners are expressly legal here. Section 5704(10)(ii)(B) allows any person to intercept a radio communication transmitted by any governmental, law enforcement, civil defense, private land mobile or public safety communication system, including police and fire systems, readily accessible to the general public. An unencrypted dispatch channel is therefore fair game in Pennsylvania, while a channel the department has encrypted is not readily accessible and falls outside the paragraph.

Act 22 of 2017 added paragraph (2) to the definition of "oral communication," and reading it closely shows which way it points. It removes from the definition any communication made in the presence of a law enforcement officer on official duty who is in uniform or otherwise clearly identifiable and who is using a device approved under § 5706(b)(4) in the course of law enforcement duties. The paragraph then enumerates who counts: members of the Pennsylvania State Police, municipal officers certified under 53 Pa.C.S. Ch. 21 Subch. D, agents of the Office of Attorney General, sheriffs and deputy sheriffs, waterways conservation officers under 30 Pa.C.S. § 102, officers under 34 Pa.C.S. § 102, Department of Conservation and Natural Resources employees vested with arrest powers under the Conservation and Natural Resources Act, agents under 61 Pa.C.S. § 6101, and Department of Corrections Bureau of Investigations and Intelligence officers. The effect is to legalize the officer’s recording of you. It says nothing about your recording of the officer, which still rests on the general privacy test.

If someone does record you unlawfully, 18 Pa.C.S. § 5725 supplies a private civil action for actual damages, but not less than liquidated damages computed at $100 a day for each day of violation or $1,000, whichever is higher, plus punitive damages and a reasonable attorney’s fee and litigation costs. Subsection (b) waives sovereign immunity so that Commonwealth officers and employees can be sued under it, and subsection (c) gives a defense of good faith reliance on a court order or on the chapter itself.

Two federal points sit on top of the state statute. The United States Court of Appeals for the Third Circuit, whose territory includes all of Pennsylvania, held in Fields v. City of Philadelphia, No. 16-1650 (3d Cir. July 7, 2017), that the First Amendment protects the act of recording police officers performing their official duties in public, reasoning that the First Amendment protects the public’s right of access to information about their officials’ public activities. That decision does not repeal the Wiretap Act, but it means a Philadelphia, Pittsburgh or Allentown officer cannot lawfully order a bystander to stop filming a public arrest simply because filming is happening.

§ 1101(3). The same grading applies to intentionally disclosing or using the contents of an unlawfully intercepted communication, so forwarding a recording someone else made can be charged as well as making it. Charges are brought by the district attorney for the county where the recording happened, or by the Office of Attorney General. § 5725 gives the person recorded a civil suit for actual damages, liquidated damages of $100 per day of violation or $1,000 whichever is higher, punitive damages and attorney fees, with sovereign immunity waived.

§ 5101 with obstructing administration of law, a misdemeanor of the second degree carrying up to two years under § 1104(2) and $5,000 under § 1101(5); that section requires force, violence, physical interference or an obstacle, and expressly excludes avoiding compliance without affirmative interference, so standing back and filming does not satisfy it.