Legal Question in Technology Law in Pennsylvania

do you need to tell someone if you record a conversation. I'm getting harassed at work, and I need proof for my boss.

Asked on 2/28/10, 2:09 am

3 Answers from Attorneys

Bruce McCullough Bodell Bove', LLC
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In Pennsylvania both parties to the recording must consent pursuant to 18 Pa. C.S.A. 5704(4):

"It shall not be unlawful and no prior court approval shall be required under this chapter for: . . . . (4) A person, to intercept a wire, electronic or oral communication, where all parties to the communication have given prior consent to such interception."

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3/05/10, 6:12 am
Kevin Begley Kevin J. Begley - Attorney at Law
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That being said, you CAN use ANYTHING to impeach someone, so my first comment is that if a situation was significant enough not to ignore, I would record the conversation anyway, and if the person ever denies what was said under oath, particularly at trial, then I would use the recorded statement to impeach them.

Second, the statute cited, requires the interception of a communication. You are not intercepting anything, you are speaking about recording your own conversation, so I do not believe that statute applies. Even if someone wanted to call your recording an interception, a violation of C.S.A. 5704(4), is a criminal charge, and the state would have to prosecute you, not the person harassing you, and I doubt a prosecutor would prosecute someone recording their own conversation to protect themselves. You are not a corporation or a third party.

You may also want to reference this case:

http://www.aopc.org/opposting/supreme/out/a44007_00.pdf

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3/05/10, 7:57 am
William Marvin Cohen, Placitella & Roth, P.C.
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Sorry, Kevin, but that's a bad answer. You are completely wrong. Bruce was correct. And even though we don't have an attorney-client relationship with the inquirer, you should not be advising someone to commit a FELONY! Regardless whether there may be some defense, or you think it's unlikely that prosecutors would pick up the case (a poor assumption, since there are reported convictions under the statute), you can't tell someone it's OK to violate a criminal statute on its face. Clearly, the guy doesn't want to record his own statements, he wants to record what other people are saying. So you're wrong on that theory too.

Plus, I'm pretty sure the statute also precludes using an illegal recording as evidence, so impeachment is no excuse.

I'm aware there's an exception and interception is allowed when the other parties don't have a "reasonable expectation of privacy." "Reasonable expectation of privacy" is one of grayest areas there is in the law, so it would be foolhardy to rely on that.

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3/05/10, 9:47 am

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