Cipriani & Werner recently handled the defense of a lawsuit seeking civil damages under the Pennsylvania Wiretapping and Electronic Surveillance Act. Under Pennsylvania’s Wiretapping Act, it is illegal to record a telephone conversation, or any conversation, without the consent of all parties to the conversation, without an appropriate court order or unless the parties to the conversation understand or should understand that they have no reasonable expectation of privacy. The Wiretapping Act also has a provision permitting a civil action for damages resulting from a violation of the Act. Civil actions under the Act are rare, and are generally associated with a domestic relations situation, such as when one spouse records a conversation with another spouse without his or her permission or records a conversation between the other spouse and a third-party without their permission. It does not take much imagination to understand what is generally going on with respect to such conversations.
The case handled by C&W presented what is perhaps a unique situation. C&W was asked to represent two residents of Oregon who were sued in the Cumberland County, Pennsylvania Court by their business partner, a resident of California. The plaintiff happened to be in Cumberland County on business when he participated in a business-related telephone conference with the defendants who were at their place of business in Oregon. As was customary, one of the defendants recorded the conversation instead of taking notes for the preparation of minutes or follow-up concerning the meeting. However, the plaintiff alleged that he was not aware that the conversation was being recorded. During the conversation, the plaintiff agreed to sell his stock in the business to his two partners.
The plaintiff apparently had second thoughts about selling his stock, and his partners sued him in the Oregon courts to compel the sale. Various other claims and counterclaims were made relating to the business. In support of their claim that the plaintiff had agreed to sell his stock, the other partners submitted a transcript of the recorded telephone conversation.
The plaintiff did not contest the legality of the recording in the Oregon courts. Under Oregon law, any participant in a conversation may record the conversation without the consent of the other participants.
The Oregon courts, relying in part on the recorded conversation, held that the plaintiff had agreed to sell his stock at the designated price. The plaintiff filed an appeal in the Oregon courts and also filed his civil action in Cumberland County. He appeared to be alleging that as a result of the “illegally” recorded conversation, he lost the Oregon case and had to sell his stock at the agreed price, when in fact the stock was worth considerably more. He also appeared to be seeking the recovery of counsel fees incurred in the Oregon case, and under the Pennsylvania Act, would be entitled to recover counsel fees if he successfully prosecuted the Pennsylvania civil action.
C&W’s research during the initial stages of the case failed to come up with a clear answer as to whether or not it was a violation of the Pennsylvania Wiretapping Act if someone in a state such as Oregon recorded a conversation with a person in Pennsylvania without permission when such recording is arguably a violation of the Pennsylvania Act but permitted by the Oregon Act.
The case was dismissed as part of a resolution of the Oregon action while defendants’ Preliminary Objections were pending in the Cumberland County Court. In those Preliminary Objections, the defendants asserted that there was no personal jurisdiction over them in Pennsylvania. As part of this, they argued that the recording of a conversation in Oregon was not a violation of the Pennsylvania law and, thus, not a basis for long-arm jurisdiction.
This type of situation may seldom come up, and generally there is no reason not to advise all participants in a conversation that it is being recorded. However, there may well be times during an accident investigation when it is felt that a witness may be more candid if he or she does not know the conversation is being recorded. If all the parties are in Pennsylvania, the answer is an easy one—the recording without permission would be a violation of the Pennsylvania Wiretapping Act. However, what if the person doing the recording is a claims adjuster in Oregon? What if the person making the recording does not know where the other person is located? What if it is a conference call with participants from multiple states, some of which require full consent and some of which do not?
What It Means to You
The first part of the analysis should focus on where the parties were located at the time of the recording. The analysis is simpler if the parties are all in the same state. The law for the Commonwealth of Pennsylvania is discussed above. New Jersey is a “one party consent” state—it is a crime to record an in-person or telephone conversation unless one of the parties to the recording consents. N.J. Stat. §§ 2A:156A-3, -4.West Virginia is also a “one party consent” state. W. Va. Code § 62-1D-3. There are wrinkles to all three statutes that need to be explored based on the facts of each individual case.
If the participants are in two states with conflicting wiretapping and interception statutes, then a choice of law analysis becomes necessary. Ultimately, every case is different and must be analyzed based on its own facts, especially since each state has peculiarities that could make conduct criminal in one, but not in the other.