Noxious Creeping Part V: PA legislators to other states- "Please decide our laws for us"

“(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 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 a proposal to allow Pennsylvania courts to consider wiretaps that were legally made under other states laws, even if they would have been illegal in Pennsylvania.

Part V: PA Legislators to other states—“Please decide our laws for us”

HB 2400 would require Pennsylvania courts to consider recordings that were legally made in jurisdictions other than Pennsylvania. For example, if a person legally recorded another in New Jersey, a Pennsylvania court would have to accept the recording as evidence. The Pennsylvania court would have to allow the recording, even if the recording would have been illegal if it had been made here.

Pennsylvania has a tradition of granting broader privacy rights than many other states. Even the United States Constitution offers less protection for personal privacy than does Pennsylvania law. Our state constitution’s guarantee against unreasonable searches is older than the Fourth Amendment in the Bill of Rights. In our wiretap statutes, Pennsylvania long ago decided that all parties to a conversation must consent to recording. In contrast, many states require only one party to consent. Our commonwealth’s robust privacy protections make a strong statement: We helped give birth to American liberty, and we want to enjoy as much of it as we can.

Unfortunately HB 2400 would contradict our tradition of assuring strong privacy rights. The bill would force Pennsylvania’s judges to open their courtrooms to recordings that would be illegal and inadmissible if they had been made here. The all party consent rule—a fundamental protection for all who appear in Pennsylvania’s courts—could disappear for some defendants.  Admissibility would depend merely on where their conversations were intercepted. The legislators of other states, as well as members of Congress, would have the authority to decide when Pennsylvania courts would have to admit certain recordings.

Our legislators in Harrisburg can talk a good game about states’ rights and Pennsylvania’s authority to govern itself. But when it is time to step up to the plate, do their votes follow their rhetoric? The supporters of HB 2400 must be hoping the answer is “No.”

Nathan Vogel, Frankel Legislative Fellow, ACLU of PA