A Primer On Federal And Pa. Electronic Surveillance Law

By: Kevin E. Raphael , Douglas E. Roberts

Recently, news broke that not one but two former high-ranking Pennsylvania state officials—former Treasurer Rob McCord and John Estey, the one-time top aide to Gov. Ed Rendell—secretly recorded conversations, potentially thousands of them, with political and business leaders at the behest of federal law enforcement. These revelations bring focus on the regulations concerning electronic surveillance and wiretapping: Under what circumstances do they permit the interception of seemingly private conversations? Can law enforcement officers or cooperators record seemingly private conversations without permission? How about private citizens? And do persons who learn their communications have been intercepted without their permission have any recourse? What follows is a primer on this complex and highly technical area of the law.

What’s at issue? Electronic surveillance takes numerous forms and encompasses generations of technology. It is more modern and sophisticated than the cinematic images of bugs in pepper shakers and agents in the next motel room with a parabolic microphone—though it certainly includes those things. It also occurs when someone records a phone call or face-to-face conversation with an app on his or her smartphone. Commonly these days, ­”electronic surveillance” covers the many ways in which law enforcement and cooperators intercept phone calls, texts, computer data, and emails. It is wiretaps, microphones planted in offices and cooperators wearing body wires.

If not conducted in a circumscribed ­manner and pursuant to safeguards, electronic surveillance can infringe on individuals’ constitutionally protected right to be free from unreasonable searches and seizures. The specific rules governing electronic surveillance depend on whether it is conducted in connection with an investigation by law enforcement and whether that investigation is state or federal in nature.

Federal Electronic Surveillance

Federal law permits the interception of an in-person or electronic communication where any party to the conversation consents. Thus, one individual can record a face-to-face conversation—with a body wire, for example—or a phone call with another. That person can then provide that recording to law enforcement, with no ­concern for liability—and with no recourse for the unwittingly recorded party should that conversation be used in a federal ­criminal proceeding.

Where no party consents to the interception, the federal government’s authority is curbed by Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. Section 2510 et seq. Title III purports to reflect private citizens’ constitutionally guaranteed right to be free from warrantless invasion of their reasonable expectation of privacy. To employ a wiretap or recording device, such as a microphone hidden in an office, law enforcement must obtain the permission of a high-ranking official in the U.S. Department of Justice and an order authorizing the warrant from a neutral and detached judge. The court should only permit the interception if the government can demonstrate that other, less invasive investigative procedures have been tried and have failed, or if such procedures would be too dangerous to attempt or unlikely to succeed if employed. A warrant is effective for a maximum of 30 days, but the government can extend the period by seeking ­reauthorization from the court. Moreover, law enforcement must undertake reasonable efforts to minimize the interception of extraneous communications. If the ­government does not abide by Title III’s requirements, intercepted communications cannot be used in court against the ­aggrieved individual.

Finally, Title III contains a notice ­provision. No later than 90 days after an authorization order (or its last extension) terminates, the court must notify the ­persons named in the application and any other interested party that their ­communications were sought or intercepted. But the court may postpone the notice period on the government’s showing of good cause. Most commonly, the government asserts good cause by arguing that a timely notice would compromise an ongoing criminal investigation.

Pennsylvania Electronic Surveillance

Pennsylvania’s Wiretapping and Electronic Surveillance Control Act, 18 Pa. Stat. Section 5701 et seq., is based on, and similar in many respects to, Title III. From a procedural standpoint, the statutes ­detail nearly identical procedures for seeking and obtaining orders authorizing electronic surveillance, and they contain similar ­minimization and timing requirements.

However, the statutes differ greatly in scope. Unlike the federal system and most states, Pennsylvania is a “two-party ­consent” jurisdiction. In other words, as a general matter, both parties to a telephone or in-person communication must consent to its recording for the recording to be lawful. Under the Pennsylvania statute, an ordinary citizen commits a third-degree felony when he or she records a face-to-face or telephone conversation without the consent of all participants and/or discloses such a conversation—be it to the authorities, in a court proceeding, or otherwise—as long as the aggrieved party had a reasonable expectation of privacy in the communications. (See Section 5703; Keppley v. School District of Twin Valley, 866 A.2d 1165 (Pa. Commw. Ct. 2005).)

Due to statutory exceptions and recent case law, this prohibition imposes less restriction on law enforcement. In the ­context of a criminal investigation, authorities only need the consent of one party—i.e., a ­cooperator or undercover officer—to ­record and intercept communications, as long as the attorney general, the district attorney, or one of their designated assistants blesses the procedure. And no such authorization is necessary when a law enforcement officer listens to a cooperator’s conversation with a suspected criminal on speaker phone. According to the state Supreme Court, in the case of Commonwealth v. Spence, 91 A.3d 44 (Pa. 2014), that technique does not implicate Pennsylvania’s electronic surveillance law because the officer did not use a “device” to intercept the communication.

Another important difference from Title III is that Pennsylvania’s statute lacks a notice requirement. Targets of wiretaps or electronic surveillance may not learn that their communications were sought ­unless they are prosecuted. Criminal charges would trigger the state’s ­discovery obligations, requiring it to turn over the ­communications, as well as the relevant applications and authorizing orders.

Which Law Applies?

Because Title III and the Pennsylvania Wiretapping and Electronic Surveillance Control Act are similar in so many respects, this is often a question of form over substance. However, state law governs state criminal cases, and federal law governs federal criminal cases. One interesting wrinkle could arise where a private citizen in Pennsylvania records a conversation with another person, without that person’s ­consent and without any authorization from law enforcement. The private citizen has violated Pennsylvania law by recording the conversation and would commit a third-degree felony by disclosing it. But, while that conversation could not be used in a state criminal proceeding against the aggrieved person, Title III would permit its use in a federal prosecution.

Parting Thoughts

Hopefully your clients will never have to probe the depths of electronic surveillance law. However, advancements in technology and legal developments have made it easier than ever for law enforcement to employ this technique, and ordinary citizens can record conversations with a tap of an iPhone. Thus, it is critical to speak with caution and be mindful of the time in which we live. If your clients believe that their ­conversations have been, or are being recorded, or if they receive notice that their communications have been intercepted, advise them to consult with experienced counsel that can explain the consequences they may face and the recourse they may have.

Reprinted with permission from the “May 31, 2016” edition of the “The Legal Intelligencer”© “2016” ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-257-3382 or reprints@alm.com

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