Is Recording a Conversation with Your Spouse Considered Illegal Wiretapping in Pennsylvania?

Divorces, custody battles and support disputes can turn ordinary people into detectives, feeling the need to “get the dirt” on their spouse or ex-spouse to strengthen their own case. They may do it using technology, like smartphones, that make it easy to record conversations. Then, they bring the recordings to their lawyer claiming they have proof of the other party’s infidelity or other bad behavior. The problem is that evidence obtained in this way may not qualify as evidence at all.

The Pennsylvania Wiretapping and Electronic Surveillance Control Act requires that you get permission from all parties before you can record a conversation. In other words, it is generally illegal to secretly record conversations. If you violate the Wiretapping Act, two things may result:

• Your recordings could easily be deemed inadmissible in court.
• You could be charged with a third-degree felony, a conviction of which could lead to up to seven years in prison and up to $15,000 in fines.

The Wiretapping Act applies to “conversations.” Its restrictions only cover recordings that have an audio component. By contrast, it is legal to record video of someone without their consent as long as both of the following are true:

• The video does not have sound.
• The person being recorded had no reasonable expectation of privacy at the time.

For example, it would be legal to videotape your husband having dinner with his alleged mistress at a restaurant as long as the video has no sound, because the restaurant is a public place. That recording would be admissible evidence in your divorce case. However, it would be illegal to videotape your husband having dinner with his mistress in his or her home because both of them have an expectation of privacy there.

Most wiretapping issues hinge on whether the recorded conversation qualifies as an oral/audio communication and whether the recorded person had a reasonable expectation of privacy. For example, in 2017, the Pennsylvania Supreme Court ruled that a person walking on a public sidewalk has no expectation of privacy and therefore should expect that his or her words might be recorded.

Generally, voicemail messages are always admissible in court because the person leaving the voicemail knows they are being recorded. Also, eavesdropping on a conversation is not the same as wiretapping, so a husband could legally listen to his wife’s conversations from another room and take notes because he is not using any electronic devices to preserve the communication.

All of this means you should never secretly record your spouse or ex-spouse. The recording likely will not be admitted as evidence in court and, even worse, you could face severe criminal penalties. Instead, call The Law Offices of Jennifer Courtney, P.C. in Yardley to discuss legal methods of gathering evidence. Reach our legal team at 215.493.3360 or contact us online anytime.