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    Thursday
    Jun202019

    The Pennsylvania Wiretap Act - What Every Uber Driver and Rider Needs to Know

    A colleague and I had a conversation recently about Uber drivers and other ride-sharing platforms who are using ‘dash-cams’ to film the road ahead or passengers. These types of cameras protect drivers from claims of inappropriate conduct or dangerous driving and they’re starting to pop up in many vehicles.

    My colleague had “taken an Uber” and was on the phone with her husband when she entered the vehicle and did not realize there was a camera device - which was also capable of audio recording - in the car. 

    These details cannot be taken lightly by drivers (or passengers) because in the Keystone State, Pennsylvania requires “two-party consent.” This means that both parties to a private conversation must consent to the recording of that conversation. 

    Federal law and select states only require “one party consent,” allowing an individual to record a conversation without alerting the other participant but, in Pennsylvania, if you record someone without consent, you could be subject to a $1,000 fine.

    History
    Pennsylvania was a “two-party consent state” and wanted to protect this status so on October 4, 1978, it enacted the “Wiretapping and Surveillance Control Act” (“the Act”). The Act, codified 18 Pa.C.S. §5701 et seq. provides that:

      “a person is guilty of a felony of the third degree if he: (1) intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept any wire, electronic or oral communication . . . .”  

    18 Pa.C.S. § 5703(1) also prevents individuals from intentionally disclosing or using the contents of a wire, electronic, or oral communication obtained through the interception of such a communication. See id. at § 5703(2)-(3).  

    Thus, three specific actions violate this statute: 
    (1) intentionally recording a conversation without the participants’ knowledge, 
    (2) disclosing the contents of the illegally-recorded conversation, or 
    (3) using the contents of the illegally-recorded conversation in some manner.  

    The Wiretap Act is not implicated when notice is given about the recording though so if you’re going to record people in the state of Pennsylvania you can do two things: (1) make an audio announcement in a phone call for an audio recording, and/or (2) place a sign that you are being recorded (as, for example, Uber drivers who are using dash-cams recording devices should do).

    Exceptions to The Act
    There are some exceptions to the Wiretap Act that would protect individuals from violating the law. For example, individuals may record conversations for investigative or law enforcement purposes or for emergencies within the police department, fire department, or county emergency center. See id. at 5704(2)-(3). Additionally, public utility personnel may record conversations to aid in receiving or dispatching emergency information, provided that a periodic warning alerts the conversation’s participants of the recording. Id. at 5704(6). Additional exceptions include, but are not limited to, the interception of calls made from inmates within prison or calls made from school buses for security purposes. Id. at 5704(14), (17).  

    What if you didn't know about PA’s Wiretap Act?
    Absence of knowledge about the Act can’t save you. In 2017, the Pennsylvania Superior Court interpreted the Wiretap Act in Commonwealth v. Cline, 177 A.3d 922 (Pa. Super. 2017). The Defendant in that case, charged with violating the Act, argued that he did not know it was illegal to secretly record a conference. Id. at 925-26. Ignorance of the law, however, was not a valid defense against a Wiretap Act charge. Id. at 926.  The court convicted defendant pursuant to § 5703 and sentenced him to a term of incarceration of eleven and a half to twenty-three months. Id. at 927.       

    The Takeaway
    The Pennsylvania Wiretap Act is something everyone should know about – especially Uber drivers who might be using recording devices [and passengers who are subject to recording]. Courts take violations of the Pennsylvania Wiretap Act very seriously. A third degree felony charge for a Wiretap Act violation carries a maximum penalty of seven years’ incarceration and a fifteen thousand dollar fine. Additionally, if you record someone without their consent, they could sue you and recover damages.

    So what about if you’re an Uber driver, you post a sign, and the rider doesn’t consent to be recorded?

    That’s a blog post for another day …

    John Schwab is a Partner at Pietragallo Gordon Alfano Bosick & Raspanti, LLP and practices in the areas of Government Enforcement & Compliance, White Collar Crime, and Cyber Liability & Technology Law. John has represented corporate and individual clients in a wide range of civil and criminal matters across both state and federal levels. Prior to his legal practice at Pietragallo, John served in the US Marine Corps as a Chief Trial Attorney. His experience on both sides of the table make him one of Pennsylvania’s most sought-after defense attorneys.

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