Noxious Creeping: Amending the PA Wiretap Act (Part II)

“(T)he erosion of freedom rarely comes as an all-out frontal assault but rather as a gradual, noxious creeping, cloaked in secrecy, and glossed over by reassurances of greater security.” – Senator Robert Byrd

A group of prosecutors in Pennsylvania is seeking a major expansion of government surveillance power.  They are advocating for House Bill 2400, and we expect its supporters to try to fast-track the bill through the legislature before the state budget passes and before it can get a thorough review from lawmakers and the public. The bill would make about a dozen changes to current law, many of which seriously undermine Pennsylvanians’ privacy. We’re discussing the worst of them in a series of posts. This post discusses the proposal to kill the rule that prevents prosecutors from using civilians’ illegally- made wiretaps in court.

Part II: Allowing prosecutors to use illegal civilian wiretaps

In Pennsylvania, it is a crime to record the private conversations of another person without his consent. If someone commits this crime, prosecutors cannot use the illegal recording in court.

Excluding illegal civilian wiretaps from court is a common sense rule. It guarantees that a person cannot be convicted of a crime based on evidence that someone got by committing an illegal act against the person. The Fourth Amendment to the U.S. Constitution already requires that if police illegally wiretap a person, the illegal recording cannot be used against him in court. Prohibiting illegal civilian wiretaps is a logical extension of the Fourth Amendment rule.

Imagine if the rule did not exist: A person could intentionally commit a crime—recording private conversations without consent—against another.  If a prosecutor used an illegal wiretap in court, would the prosecutor be likely to turn around and prosecute the person who made the illegal recording? And is it too farfetched to imagine a law enforcement officer, with a wink and a nod, telling a complaining witness, “If I recorded the suspect’s conversation, we couldn’t use it in court. But if somebody else did it…”?

It shouldn’t surprise you that prosecutors want to get rid of this “exclusionary rule” for civilian illegal wiretaps.  But it should surprise you that some legislators appear to be considering it. If the supporters of HB 2400 succeed, any illegal wiretap could end up in court as evidence against the victim of illegal, secret surveillance.

Excluding illegal wiretaps—by police or civilians—is how the law ensures that privacy rights in constitutional and statutory law are more than just words on paper. It is a sensible rule, and it should stay in the laws of Pennsylvania.

Nathan Vogel, Frankel Legislative Fellow, ACLU of PA