Pennsylvania’s Wire Tap Law

Pennsylvania’s Wiretap law occasionally arises in the context of medical negligence and/or nursing home neglect and abuse cases whereby an injured victim, or a family member, records the wrongdoer without his/her consent. In Pennsylvania, it is a felony of the third degree to intentionally intercept, endeavor to intercept, or get any other person to intercept any wire, electronic, or oral communication without the consent of all the parties. 18 Pa. Cons. Stat. § 5703(1). Consent of all parties is required to audio record a conversation. 18 Pa. Cons. Stat. § 5704. Consent is not required of any parties if the parties do not have a reasonable expectation of privacy for their non-electronic communication. Anyone whose communication has been unlawfully intercepted can recover actual damages in the amount of $100 per day of violation or $1,000, whichever is greater, and also can recover punitive damages litigation costs, and attorney fees. 18 Pa. Cons. Stat. § 5725. There are exceptions to this general rule, which was recently discussed in Chiles v. Miller, 2023 PA Super 3, No. 45 EDA 2022 (January 6, 2023).

Chiles was arrested and ultimately convicted of arson and endangering person and property for intentionally setting fire to property owned by the parents of her estranged husband. Miller was the Assistant District Attorney assigned to the case. While Chiles was awaiting trial and in preparation therefore, Miller lawfully obtained recordings of phone calls made by and to Chiles in prison. Those recordings lead Miller to believe that Chiles was planning to fraudulently hide assets from her husband in their divorce proceedings as well as from his parents’ insurance company. Miller then “took action to investigate those matters.” He also contacted counsel for the husband’s parents and provided him with the relevant recordings. He apparently also provided the relevant recordings to husband’s divorce lawyer.

Chiles sued Miller, alleging a violation of the Wiretap Act, which provides: any person whose wire, electronic, or oral communication is disclosed in violation of the Wiretap Act has a civil cause of action against any person who discloses such communication, and is entitled to recover damages from that person, including actual damages, punitive damages, and reasonable attorney’s fees and costs incurred. 18 Pa.C.S.A. § 5725. Miller filed a Motion for Summary Judgment seeking to dismiss Chiles’ complaint, arguing that his actions fell within 18 Pa.C.S.A. § 5704(14)(i)(C), an exception to the Wiretap Act.

Section 5704(14), which provides: It shall not be unlawful and no prior court approval shall be required under this chapter for:

. . .

(14) An investigative officer, a law enforcement officer or employees of a county correctional facility to intercept, record, monitor or divulge an oral communication, electronic communication or wire communication from or to an inmate in a facility under the following conditions:

• The county correctional facility shall adhere to the following procedures and restrictions when intercepting, recording, monitoring or divulging an oral communication, electronic communication or wire communication from or to an inmate in a county correctional facility as provided for by this paragraph:

. . .

(B) Unless otherwise provided for in this paragraph, after intercepting or recording an oral communication, electronic communication or wire communication, only the superintendent, warden or a designee of the superintendent or warden or other chief administrative official or his or her designee, or law enforcement officers shall have access to that recording.

(C) The contents of an intercepted and recorded oral communication, electronic communication or wire communication shall be divulged only as is necessary to safeguard the orderly operation of the facility, in response to a court order or in the prosecution or investigation of any crime.

18 Pa.C.S.A. § 5704(14)(i)(B), (C) (emphasis added).

Miller argued that as an investigative officer for purposes of the Wiretap Act, Section 5704(14) permitted him to disclose the recordings of Chiles’ prison conversations to a subrogation attorney for USAA, and to the divorce attorney for Chiles’ estranged husband, because Miller “was investigating and prosecuting Chiles after she committed arson by burning down the Property.” In response, Chiles argued that Miller’s actions did not fall within 18 Pa.C.S.A. § 5702 because he was not acting as a representative of the correctional facility, and were instead governed by 18 Pa.C.S.A. § 5717, which provides in pertinent part:

(a) Law enforcement personnel.–Any investigative or law enforcement officer who, under subsection (a.1), (b), (b.1) or (c), has obtained knowledge of the contents of any wire, electronic or oral communication, or evidence derived therefrom, may disclose such contents or evidence to another investigative or law enforcement officer to the extent that such disclosure is appropriate to the proper performance of the official duties of the officer making or receiving the disclosure.

(b) Evidence.–Any person who by any means authorized by this chapter, has obtained knowledge of the contents of any wire, electronic or oral communication, or evidence derived therefrom, may disclose such contents or evidence to an investigative or law enforcement officer and may disclose such contents or evidence while giving testimony under oath or affirmation in any criminal proceeding in any court of this Commonwealth or of another state or of the United States or before any state or Federal grand jury or investigating grand jury.

18 Pa.C.S.A. § 5717(a), (b).

The trial court granted Miller’s motion, concluding that section 5704(14)(i)(C) authorized Miller’s disclosure. However, the Superior Court reversed the trial court’s decision, concluding that while Miller qualified as an “investigative or law enforcement officer” under Section 5702, his authority to disclose communications under Section 5717 is limited to disclosures to “another investigative or law enforcement officer.”