Like all things legal, that depends on the facts. Some types of recordings are legal, while others are not. The answer is no if you want to secretly record a conversation with your ex without their consent in Pennsylvania. That applies to face-to-face and phone or electronic communications. Pennsylvania’s wiretap laws are very strict. If you or the other party is located in PA at the time of the call then you must have consent. Therefore, if you feel it is necessary to record another individual, it is best to first consult with an attorney.
You may be very motivated to succeed at whatever legal challenge you face. You might seek revenge against your spouse who did you wrong, and you think a recording of them making incriminating statements would be frosting on the cake. However, while secretly recording someone is generally legal in some states, it is not legal in others, including Pennsylvania.
What Is the Law in Pennsylvania?
The state has a criminal “wiretapping law” that covers recording conversations over the phone or electronically and in person. It requires that all parties involved consent to the recording unless you fall into one of the exceptions (which mainly cover law enforcement). If you are convicted of violating this statute you could face up to seven years in prison, a fine between $2,500 and $15,000, or both.
This statute states that you would violate the law if you:
- Intentionally intercept, try to intercept, or get the help of another to intercept or try to intercept any “wire, electronic or oral communication.”
- Disclose or try to disclose to another “the contents of any wire, electronic or oral communication, or evidence derived therefrom” while knowing, or having reason to know, the information was obtained illegally.
- Use or try to use “the contents of any wire, electronic or oral communication, or evidence derived therefrom” while knowing, or having reason to know, the information was obtained illegally
If you secretly record your ex, bring it to our office, and play it in the hopes of using it as evidence, you arguably broke the law three times. You recorded the conversation, played it, and tried to use it against your ex.
If you have such a recording, we do not want to listen to it, and we cannot use it as evidence in a legal matter. If you make a secret recording and play it for us, we cannot represent you because we would be potential witnesses to your criminal prosecution.
What are the Exceptions?
Another statute states that you can record conversations when all parties consent. If you do this, you should ask for and record their consent in case they later claim you made the recording secretly. Explicit consent is always a good idea but is not required if you plainly warn the other party of the recording and they speak anyway.
One Pennsylvania court ruled that recordings are permissible if all the parties knew, or should have known, of the recording. The recording at issue involved communications at a county jail where two people used a closed-circuit system using telephone handsets which gave them a warning the conversation could be recorded.
If the two of you are in public but not having a private conversation, and the other person has no reasonable expectation of privacy, you could take out your smartphone and start recording. This could be a situation where you are both in a store, restaurant, or busy sidewalk, and the person is yelling at you, not in a restaurant where the two of you are using normal tones of voice while your smartphone secretly records what is said.
Can I Use Video to Record My Ex?
Video can be used as long as the audio is not recorded and the person does not expect privacy. If your ex is violating a custody agreement by chronically being late to pick up or drop off your child, a properly set camera with the correct date and time showing when they come and go is fair game. If you have a protection from abuse order against a person, but they violate it by coming to your home or following you, video can document what is happening.
Before You Record a Conversation, Contact Our Office
The potential cost of secretly recording a conversation is steep, so do not do it until you fully understand the law. What you want to do may or may not be legal or admissible in court. We can also answer your questions if you are involved in a family law dispute and learn you have been secretly recorded.
Call Karen Ann Ulmer, P.C., at (866) 349-4721 or book a consultation online now.