Know PA Wiretapping Law: Think Before You Record Your Ex

In Pennsylvania, it is illegal to record a conversation unless both parties consent to the recording. Section 5703 of the Pennsylvania Wiretapping and Electronic Surveillance Control Act provides that if one party intentionally intercepts, endeavors to intercept or procures any other person to intercept any wire, electronic or oral communication they are “guilty of a felony of the third degree…”

Basically, if a person records a conversation without the consent of the other people involved in the conversation, that person has violated the Act. The Act explains that use of “electronic, mechanical or other device” to record is strictly prohibited. Further, the Act provides that “other device” includes, but is not limited to “an induction coil or a telecommunication identification interception device, that can be used to intercept a wire, electronic or oral communication other than: any telephone or telegraph instrument equipment or facility, or any component thereof …”

So, if telephones are expressly excluded from the Act, can a party record a conversation, without permission, on a cell phone or a cell phone app? A recent court decision says no.

In February 2016, the Pennsylvania Superior Court found in Commonwealth v. Smith that recording a conversation on a voice memo app on an iPhone is more like recording a conversation on a “pre-digital tape recorder” than on a telephone. The Superior Court quoted a 2014 U.S. Supreme Court decision, Riley v. California: “the term ‘cell phone’ is itself misleading shorthand; many of these devices are in fact minicomputers that also happen to have the capacity to be used as a telephone. They could easily be called cameras, video players, rolodexes, calendars, tape recorders, libraries, diaries, albums, televisions, maps or newspapers.”

The lesson here: if you are thinking about recording a conversation – perhaps with your ex- or soon-to-be-ex-spouse – on your cell phone and you don’t have the other person’s permission, DO NOT PRESS RECORD.

At Williams Family Law, P.C. we can help you understand the PA Wiretap Act as it relates to domestic relations cases, including divorce, child custody and more. Call our office at 215-340-2207 to schedule a consultation with one of our Bucks County family law attorneys so we can help you to understand your rights and obligations as they relate to domestic relations.

Read more Pennsylvania Family Law blogs on the Williams Family Law website.

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