Tempted to Use Your Smartphone to Record Your Boss at Work?  Be Careful!

August 7, 2015 by Julie A. Uebler, Esq.

Have you ever had the urge to record a meeting with your boss, or a confrontation with a co-worker? Depending on how you make the recording, doing so may be illegal. The Pennsylvania Wiretapping and Electronic Surveillance Control Act (the “Wiretapping Act”) imposes civil and criminal penalties where a wire, electronic, or oral communication is intercepted, disclosed, or used in violation of the Wiretapping Act.

Some states are “single party consent” states, which allow one party to the communication to record it, but prohibit an outsider from recording the conversation without the participants’ consent. Pennsylvania has generally been considered a “two-party consent” state, which means that both (or all) parties to a communication must consent to it being recorded to avoid liability.

For a violation to occur, the person whose communication is intercepted must have a reasonable expectation that it would not be intercepted, so the law does not prohibit recording conversations made in public. The law defines “intercept” as the “acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical or other device,” and expressly excludes the situation when telephone subscribers use their own phones to listen to a communication.

Last year, the Pennsylvania Supreme Court considered the question of whether a cell phone constituted a “device” under the Wiretapping Act. In the case, Commonwealth v. Spence, a state trooper used the speaker function of an informant’s cell phone to listen to the informant arrange a drug transaction. The court held that the use of the speaker function on the cell phone did not violate the Act, relying on the exclusion for telephones. Of course, when the Wiretapping Act was first adopted by the legislature, telephones were not capable of making recordings as you would with a traditional “tape recorder.”

What if a cell phone is used to record, rather than overhear, a conversation? Certainly, if an employee brought a Dictaphone or other tape recording device into a private meeting to record it without the other party’s consent, there would be a violation of the Wiretapping Act. Should the result be different if an employee used her smartphone? What about making a recording using Google Glass?

Recently, law enforcement officers and judges around the state have struggled with these questions. One judge recently dismissed criminal charges against John Large, who had used Google Glass to record a discussion with a manager at a nursing home about his disabled daughter’s care. The judge in that case was persuaded that the nursing home manager did not have an expectation of privacy with respect to the conversation because it happened with her office door open, and others entered the room while they spoke. Unfortunately for Mr. Large, the dismissal did not prevent him from being arrested, or spending time in jail pending the ruling.

This summer, a judge dismissed criminal charges against Talbot “Todd” Smith, a former Unilife Corp. executive who has a whistleblower suit pending against his former employer. The criminal charges stemmed from Smith’s recording of a lengthy conversation with a supervisor using his iPhone without the supervisor’s consent. The court ruled that the charges should be dismissed because the Wiretapping Act excludes telephones as intercepting devices.

Despite the ruling in Todd’s Smith’s case, employees should be very cautious about making recordings of communications without the consent of all parties. Although this judge was apparently willing to extend the reasoning of Spence to exclude cell phones from the Act’s coverage, it is certainly possible for another judge to conclude that using an iPhone to make a recording is conduct that was never intended to be excluded by the telephone exception. The ruling in the Smith case may also be overturned on appeal.

Employees should also keep in mind that the person making the recording is not the only one potentially subject to liability. Recently, the Pennsylvania Attorney General indicted two attorneys under the Wiretapping Act for presenting oral recordings in court, which were allegedly illegally made by others. So, if you think you are doing your lawyer a favor by recording a conversation to use as evidence, think again. Besides, do we really want to allow our private conversations to be recorded without our consent?

Julie A. Uebler, Partner | Employment Law