Pennsylvania's statute makes it illegal to intentionally intercept (through use of a device), attempt to intercept or have someone else intercept any wire, electronic or oral communication. It is also illegal to intentionally use or disclose (or attempt to use or disclose) any information concerning the substance, purport, or meaning of the communication or evidence derived from the contents of a communication if one knows or has reason to know that the information was obtained through interception. Violation is a third-degree felony, punishable by imprisonment for up to seven years and a fine of no more than $15,000. Pennsylvania includes an exception to the interception statute to allow the recording of certain telephone communications with a contractor or designer about excavation or demolition work, provided the parties are informed that the call is being recorded. Consent It is not unlawful to intercept a communication when all parties to the communication have given prior consent. Ordinary answering machine tapes fall within the mutual consent provision of the statute and are not unlawful interceptions. Reasonable expectation of privacy The statute requires a reasonable expectation of privacy for oral communications. To be protected, an oral communication must be uttered by a person exhibiting an expectation that the communication is not subject to interception, under circumstances that justify that expectation. In 1986, a Pennsylvania lower court ruled that an employee who had surreptitiously recorded an unemployment compensation hearing did not violate the statute because a record of the testimony was routinely made for purposes of review by the board and the courts. The court ruled that there was therefore no reasonable expectation of privacy at the hearing. In 1993 a lower court ruled that a Children and Youth Services client did not violate the statute by secretly recording his meeting with a case worker. Because the case worker did not disclose any personal information, he had no expectation of privacy regarding the conversation. And in 1989, the state's Supreme Court ruled that a state trooper had no expectation of privacy while interviewing a suspect, so that the suspect's surreptitious recording of their interview was not illegal. Pennsylvania courts, including the Supreme Court, in recent years have made a distinction between an "expectation of privacy" and an "expectation that a communication will not be intercepted." In 1996 the Superior Court in Philadelphia, citing a 1994 state Supreme Court decision for support, ruled that a person need not have a reasonable expectation of privacy in order to be protected by the statute as long as the person had a reasonable expectation of noninterception for the communication: If one is speaking with the town gossip at a public swimming pool under circumstances insuring that the gossip is not wearing a body wire, one's expectation of noninterception is very high, but the expectation of privacy is very low. Thus, an expectation of privacy does not always carry a concomitant expectation of noninterception, and vice versa. For purposes of violation of the Wiretap Act, while we consider the expectation of privacy as a factor, it cannot be the determining factor in our analysis. (Commonwealth v. McIvor, 670 A.2d 697, 699 (Pa. Super. Ct. 1996). The court ruled that motorists stopped by a uniformed police officer had no expectation of privacy but had "a very real" expectation of noninterception, so that the officer's tape recording of their conversations violated the statute. What is covered It is legal under the statute to intercept or access an electronic communication made through an electronic communication system configured so that the communication is readily accessible to the general public. It is legal to intercept radio communications that are transmitted by any governmental, law enforcement, civil defense, private land mobile or public safety communications system, including police and fire department systems, if they are readily accessible to the general public. "Readily accessible" means, among other things, that the signals are not encrypted or scrambled. It is also legal to intercept amateur, citizens band or general mobile radio services communications as well as the radio portion of a cordless telephone communication. A person is guilty of a third-degree felony if he or she possesses a device and knows or has reason to know that its design makes it primarily useful for surreptitious interception of communications. Any device possessed or used in violation of the statute is considered contraband and may be seized and forfeited to the state. The Pennsylvania Supreme Court has ruled that listening to a phone conversation through a telephone extension is an unlawful interception of the communication under the statute. The court ruled in 1989 that an extension telephone qualified as an "electronic, mechanical or other device" as required for interception under the statute. Civil remedies A person whose communication is intercepted, disclosed or used may receive either actual damages or statutory damages calculated at $100 per day of violation or $1,000, whichever is higher. Punitive damages and reasonable attorney's fees and court costs are also available. If it appears that someone is engaged in or about to engage in a violation of the interception statute, the attorney general of Pennsylvania may initiate a civil action for an injunction to prevent the violation. It is a defense to a civil action if the person acted on a good faith reliance on a court order. In a 1991 case, the Pennsylvania Supreme Court ruled that a newspaper that printed excerpts from the transcript of a telephone call intercepted by the police was not liable under the civil provisions of the interception statute. The newspaper's disclosure was not a violation because the newspaper received the transcript from the court (albeit through a mistake by the court clerk) and the newspaper waited until the court had ruled on the admissibility of the intercepted call into evidence. The court ruled this was a "good faith reliance upon a court order" as required by the statute. Sources 18 Pennsylvania Consolidated Statutes Sections 5701 through 5707, 5725, 5728, 1101, 1103 (1997); Boettger v. Loverro, 587 A.2d 712 (Pa. 1991); Gunderman v. Commonwealth of Pennsylvania, Unemployment Compensation Board of Review, 505 A.2d 1112 (Pa. Commw. Ct. 1986); Commonwealth v. Brachbill, 555 A.2d 82 (Pa. 1989); Commonwealth v. DeMarco, 578 A.2d 942 (Pa. Super. Ct. 1990); Commonwealth v. Henlen, 564 A.2d 905 (Pa. 1989); Commonwealth v. McIvor, 670 A.2d 697 (Pa. Super. Ct. 1996); Commonwealth v. Louden, 638 A.2d 953 (Pa. 1994); Commonwealth v. Christopher, 620 A.2d 494 (Pa. Super. Ct. 1992).
