With the ubiquitous use of smartphones, tablets, and other devices, the ability for the average person to secretly record conversations, take video, read text messages, and emails of other persons is widespread. The desire to take advantage of such technology is especially tempting when one believes he/she may obtain evidence that will give advantage in a divorce or a contested custody fight. However, Pennsylvania, has one of the most restrictive Wiretap and Electronic Surveillance* laws in the nation, and engaging in such activity can have wide ranging consequences.
The underlying question that comes up such situations is whether the activity infringes upon a right of a privacy. The test is two pronged: Whether the person whose communication sought to be used has (or had ) a reasonable expectation of privacy in the place or thing searched, and whether that expectation of privacy is one that society recognizes as reasonable.
This area of the law is complex and constantly evolving. Many issues arise, and before anyone decides to audio or video record another, to put a tracking device on a child’s phone, to peruse emails, twitter messages, or texts, or to install any kind of app that might relay personal information, he/she must consider at least two things: the practice may be not be legal, and / or even if legal, any information obtained may not be admissible in a Pennsylvania court. If the practice is found to be illegal, penalties can range from a fine to imprisonment.
The actions that fall within the purvue of the Pennsylvania Wiretap and Electronic Surveillance Act can be broad.
Here are some scenarios that our office has been asked about:
- Can I record my spouse without his or her knowledge?
- Can I read my spouse’s emails if we share a computer?
- Can my spouse share my text messages to him/her with anyone else?
- I found out that my spouse was on a dating website and was able to get hold of some of the messages he/she sent out . Can I use this information ?
- Can I put a tracking device on my child’s cellphone?
- Can I install a secret video recorder in my house?
If you have questions about these or similar sorts of activities consider consulting with an attorney before acting. As the adage goes, better safe than sorry.
*18 Pa. C.S.A. Section 5703