Pa. House Gives Police More Wiretap Authority

By Melissa Daniels | PA Independent 

HARRISBURG — A bill that would update the state’s wiretap law has some wondering if Pennsylvania is helping its law enforcement agencies track criminals or lowering expectations of privacy.

The state House recently passed House Bill 2400 with a 145-to-52 vote. The bill amends Act 18, commonly known as the Wiretap Act, by broadening the legal circumstances under which civilians can record oral communication without consent, and how recordings can be used as evidence in the criminal court system, among around a dozen new provisions and updates. 

Despite some provisions designed to help law enforcement agencies do their jobs, Democratic and Republican legislators voiced concern about how additional changes in the act could lead to problems down the road. One such change is allowing audio recording without consent from those being recorded if notice of possible recording is posted somewhere, like a student handbook or on a bulletin board.  

State Rep. Mark Cohen, D-Philadelphia, said the commonwealth would become the No. 1 state in citizen wiretapping if the legislation passes. “It fundamentally changes the nature of privacy in Pennsylvania,” he said on the House floor. 

State Rep. Daryl Metcalfe, R-Butler, questioned the ability of schools to record students, and said the bill would "change the whole thought about the reasonable expectation of privacy," But other representatives urged passage of the bill, noting that the last update to the Wiretap Act was in 1998. Among the provisions designed to help law enforcement are:

• Allowing law enforcement to receive a warrant to wiretap a person, rather than a phone line, to continue tracing suspects who may be ditching a cell phone to keep away from police;
• Permitting wiretaps from other jurisdictions to be used as evidence in Pennsylvania trials.

“Our laws fail to reflect the current technology to their advantage,” said the bill’s sponsor, state Rep. Ron Marsico, R-Dauphin. “Technology has made advances that law enforcement is not able to keep up with.” 

Marsico told the House about a woman who had recorded a man who attacked her viciously and heard him confess. But upon turning that tape into the police as evidence, she was charged with a felony for violating the state’s two-party consent law. Under HB 2400, only one party would need to be aware of a wiretap or recording for it to be legal, if they believed that the other party would speak about committing a crime, or confess to one. 

The Pennsylvania chapter of the American Civil Liberties Union opposed the bill during its three-week journey through the House, focusing on five of the 12 provisions. The chapter’s legislative director, Andy Hoover, said several provisions threaten the expectation of privacy of law-abiding citizens. Hoover said the bill’s language could lead to people spying on each other without basis, going on fishing expeditions for information under the guises of confessing. It’s too broad, and a proposal to narrow it down supported by the ACLU was shot down, he said. 

“This potentially opens the door to political opponents recording their enemies, however they can, in an attempt to catch them in something,” Hoover said. “There will be extremists who could use this to get more recordings than they can get right now.” Greg Rowe, legislation liaison for the Pennsylvania District Attorneys Association, a group representing prosecutors statewide, said the recording provision is linked specifically to the most violent of offenders, and two-party consent is preserved in all other circumstances. It can’t be used, he said, for proving guilt of minor crimes. 

Furthermore, Rowe said, Pennsylvania is one of 12 states to require two-party consent, and it will continue to be in the minority of those states who do while “targeting important exceptions in certain circumstances.” 

“The real impact here, the primary impact, is going to be on those who are committing the most violent crimes, the ones who are rapists, committed murder or serious aggravated assaults,” Rowe said.