Noxious Creeping Part III: You can record if you think they might admit to thinking about doing something bad in the future

“(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, which is due at the end of June, 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 allow anyone to record private conversations if they believe they will capture evidence of a crime of violence or first degree felony.

Part III: The Evidence Exception, or You can record if you think they might admit to thinking about doing something bad in the future.

Pennsylvania’s wiretap law requires that everyone in a private conversation consent before anyone can record it. The law protects everyone’s privacy by making sure that everyone has a chance to keep a private conversation private.

Legislators are proposing to create a new exception that punches a massive hole in the “all-party consent” rule—a hole with ragged, unraveling edges. This “Evidence Exception” would allow any person to record anything if they have a reasonable belief the recording will capture evidence of a past, present, or future crime. For now, at least, the exception is limited to “crimes of violence” and first degree felonies.

On its face, the law would give individuals permission to secretly record each other in many private conversations. For example, one person’s malice towards another can be good evidence in an assault case. Under this law, a person might record another person badmouthing a third person, just in case the third person was ever the victim of a violent crime sometime in the future.

The proposed law also puts a confusing burden on civilians to decide when the exception actually applies. You would only be allowed to record if you thought you would find evidence of a “crime of violence” or a first degree felony. Otherwise recording without consent is still a crime. Quiz: Sometimes burglary is a first degree felony and sometimes it is not; and sometimes it is a crime of violence and sometimes it is not. Do you know the difference?[1] How many people will be able to say whether the proposed law would allow them to record a private conversation or not? Not many, I suspect, without seeking advice from a lawyer first.

If this proposed exception seems broad by itself, consider also that it would be very likely to expand. Once we allow recording to capture evidence of “crimes of violence” and felonies of the first degree, preventing the exception from sweeping in other offenses as well will be almost impossible. Discharging a firearm into an occupied structure is pretty awful, but it is only a felony of the third degree. 18 Pa.C.S. 2707.1(b). If a legislator in the future votes against expanding the Evidence Exception to include that offense, is he or she supporting discharging firearms into occupied structures? Casting votes to keep the exception where it is would be politically very, very difficult. Inevitably, some legislator or some prosecutor will cite an emotional case to justify further expansion of this exception.

As it is now, the Evidence Exception is so large it could nearly swallow all-party consent by itself. And once created, it could easily grow even larger.

Instead, we should keep it off of Pennsylvania’s law-books entirely.

---

[1] Does it help if I tell you that burglary is only a second degree felony “If the building, structure or portion entered is not adapted for overnight accommodation and if no individual is present at the time of entry”? 18 Pa.C.S. 3502. The definitions of “crimes of violence” are at 42 Pa.C.S. 9714(g).