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Is it Illegal to Record a Conversation Without Consent?

In our modern digital age of technology, the ability to capture our experiences, whether by visual images, sound recordings or video images, is readily available at our fingertips, virtually at all times and instantaneously. With the growing popularity of social media and entertainment platforms, concerns regarding violations of privacy have also significantly risen. In such an environment, it is important to become informed on the laws regarding privacy.

If you desire to record telephone calls or in-person conversations (including by means of audio and video), you should be aware that you may face criminal liability under federal and state wiretapping laws. These laws not only expose you to the risk of criminal prosecution, but may also expose you to civil liability for damages to an injured party.

The principal consideration in the lawfulness of the recording is whether the parties involved in the communication need to provide their consent to the recording. Federal and state laws vary in the requirements for consent to the recording of the communication.

The Federal Wiretap Act

Responding to public reaction to the controversial governmental activities involving covert interception of communications of various political activist groups in the 1960’s, the federal Wiretap Act was passed in 1968. (18 U.S.C. § 2510.). This law prohibits the secret recording of an oral, telephonic, or electronic communication that other parties to the communication reasonably expect to be private. However, if at least one party to the conversation consents to the recording, the recording is lawful. Additionally, under the federal Wiretap Act, recording is legal if the person making the secret recording is authorized by law to do so.

The Act protects only those communications that the individuals being secretly recorded reasonably expect to be private. Inquiry is made as to whether the communication occurred in a public or private location and whether the content or subject matter was the recorded communication intended by the speaker to be treated as private.

While in the comfort of your own home or property, you can reasonably expect full privacy and thus are free from non-consensual recordings of your conversations. Contrastingly, while in a public setting such as a concert, grocery store, a park, and many others, there is no reasonable expectation of privacy. Thus, recordings by surveillance equipment are permissible without your consent, as these types of surveillance are designed to ensure public safety and security. However, even in public, there are certain places with expected levels of privacy where recording is not allowed, such as bathrooms and dressing rooms.

Under Pennsylvania’s wiretapping statute, however, it is a criminal offense to use any device to record verbal communications, whether they are wire, oral or electronic, without the consent of everyone taking part in the conversation. This means that in Pennsylvania you are not legally allowed to record a conversation you are taking part in unless all parties are in agreement. 18 Pa. Cons. Stat. Ann. § 5704.

Criminal Penalties

A person who violates the federal Wiretap Act faces a possible sentence of up to five years in prison, a fine of $500, or both. (18 U.S.C. § 2511.)

A person who violates the Pennsylvania Wiretapping Act faces a possible sentence of up to 3.5 to 7 years in prison and a fine of up to $15,000.

The dedicated team here at Tanner Law Offices, LLC, are here to help clear up any confusion when it comes to recording without consent. Please call one of our attorneys at 717-836-0471 to schedule a time to discuss your obligations when it comes to recording another person.