White Collar Criminal Defense Group

The Pennsylvania Wiretap Act – What Every Uber Driver And Rider Needs To Know

A colleague and I had a conversation recently about Uber drivers and other ride-sharing platforms who are using ‘dash-cams’ to film the road ahead or passengers. These types of cameras protect drivers from claims of inappropriate conduct or dangerous driving and they’re starting to pop up in many vehicles.

My colleague had “taken an Uber” and was on the phone with her husband when she entered the vehicle and did not realize there was a camera device – which was also capable of audio recording – in the car. 

These details cannot be taken lightly by drivers (or passengers) because in the Keystone State, Pennsylvania requires “two-party consent.” This means that both parties to a private conversation must consent to the recording of that conversation. 

Federal law and select states only require “one party consent,” allowing an individual to record a conversation without alerting the other participant but, in Pennsylvania, if you record someone without consent, you could be subject to a $1,000 fine.

History

Pennsylvania was a “two-party consent state” and wanted to protect this status so on October 4, 1978, it enacted the “Wiretapping and Surveillance Control Act” (“the Act”). The Act, codified 18 Pa.C.S. §5701 et seq. provides that:

• “a person is guilty of a felony of the third degree if he: (1) intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept any wire, electronic or oral communication . . . .” 

18 Pa.C.S. § 5703(1) also prevents individuals from intentionally disclosing or using the contents of a wire, electronic, or oral communication obtained through the interception of such a communication. See id. at § 5703(2)-(3).  

Thus, three specific actions violate this statute: 

(1) intentionally recording a conversation without the participants’ knowledge, (2) disclosing the contents of the illegally-recorded conversation, or (3) using the contents of the illegally-recorded conversation in some manner.  

The Wiretap Act is not implicated when notice is given about the recording though so if you’re going to record people in the state of Pennsylvania you can do two things: (1) make an audio announcement in a phone call for an audio recording, and/or (2) place a sign that you are being recorded (as, for example, Uber drivers who are using dash-cams recording devices should do).

Exceptions to The Act

There are some exceptions to the Wiretap Act that would protect individuals from violating the law. For example, individuals may record conversations for investigative or law enforcement purposes or for emergencies within the police department, fire department, or county emergency center. See id. at 5704(2)-(3). Additionally, public utility personnel may record conversations to aid in receiving or dispatching emergency information, provided that a periodic warning alerts the conversation’s participants of the recording. Id. at 5704(6). Additional exceptions include, but are not limited to, the interception of calls made from inmates within prison or calls made from school buses for security purposes. Id. at 5704(14), (17).  

What if you didn’t know about PA’s Wiretap Act?

Absence of knowledge about the Act can’t save you. In 2017, the Pennsylvania Superior Court interpreted the Wiretap Act in Commonwealth v. Cline, 177 A.3d 922 (Pa. Super. 2017). The Defendant in that case, charged with violating the Act, argued that he did not know it was illegal to secretly record a conference. Id. at 925-26. Ignorance of the law, however, was not a valid defense against a Wiretap Act charge. Id. at 926.  The court convicted defendant pursuant to § 5703 and sentenced him to a term of incarceration of eleven and a half to twenty-three months. Id. at 927. 

The Takeaway

The Pennsylvania Wiretap Act is something everyone should know about – especially Uber drivers who might be using recording devices [and passengers who are subject to recording]. Courts take violations of the Pennsylvania Wiretap Act very seriously. A third degree felony charge for a Wiretap Act violation carries a maximum penalty of seven years’ incarceration and a fifteen thousand dollar fine. Additionally, if you record someone without their consent, they could sue you and recover damages.

So what about if you’re an Uber driver, you post a sign, and the rider doesn’t consent to be recorded?

That’s a blog post for another day…

John Schwab is a Partner at Pietragallo Gordon Alfano Bosick & Raspanti, LLP and practices in the areas of Government Enforcement & Compliance, White Collar Crime, and Cyber Liability & Technology Law. John has represented corporate and individual clients in a wide range of civil and criminal matters across both state and federal levels. Prior to his legal practice at Pietragallo, John served in the US Marine Corps as a Chief Trial Attorney. His experience on both sides of the table make him one of Pennsylvania’s most sought-after defense attorneys.

Preventing FCPA Violations And Enforcement Actions With A Strong Corporate Compliance Program

DOJ and SEC consider nine factors in deciding whether to pursue a criminal indictment against a corporation for FCPA violations, or to instead seek resolution by other means, including non-prosecution or a deferred prosecution agreement. This decision can have a huge impact on the stability, reputation, and future of a corporation.

This post focuses on just one of the nine factors: The existence and effectiveness of a corporation’s compliance program. While the government does not have formulaic requirements for corporate compliance programs, it has offered guidance on the characteristics of programs that it considers most effective.

Commitment from Senior Management and a Clearly Articulated Policy Against Corruption

Senior executives must set the tone for a culture of compliance. They must send the message that compliance is mandatory and nonnegotiable, even if large (unlawful) profits are lost as a result.  

Code of Conduct and Compliance Policies and Procedures

A corporation’s code of conduct should be clear, concise, and accessible to everyone who conducts business on behalf of the company. For example, a corporation with employees around the globe should have its policies and procedures available in multiple languages. Corporate policies should outline responsibilities for compliance within the company, detail proper internal controls, and announce disciplinary procedures for violations.

Oversight, Autonomy, and Resources

Corporations must assign responsibility for oversight and implementation of its compliance program to someone with appropriate authority, adequate autonomy from management, and enough resources to ensure that the company’s compliance program is effective. Whether a corporation’s staffing in this regard is adequate will depend on the company’s size, structure, and risk profile.  

Risk Assessment

Not all transactions or relationships should be scrutinized in the same manner. Due diligence should be fact specific and should correspond with the level of risk involved in the transactions. DOJ will likely be more tolerant of an infraction in a low-risk area where the corporation has implemented a comprehensive, risk-based compliance program that devotes significant resources to areas that pose a higher risk, than it would be of an FCPA violation in a high-risk area that was not given enough attention and resources.  

Training and Continuing Advice

Compliance programs are not effective unless they are communicated throughout the organization. Corporate directors, officers, employees, agents, and business partners should receive periodic trainings on the company’s policies and procedures, applicable laws, and appropriate responses to various real-life scenarios.  

Incentives and Disciplinary Measures

DOJ and SEC will consider whether a company has appropriate and clear disciplinary procedures and whether they are applied reliably and promptly. In addition to punishing noncompliance, corporations should also consider rewarding compliance efforts with bonuses and opportunities for career advancement.

Third-Party Due Diligence and Payments

Though the degree of appropriate due diligence will vary, DOJ has noted that certain guiding principles always apply. First, companies should understand the qualifications of its third-party partners, including their reputations and relationships with foreign officials. Second, corporations should understand the business rationale for including the third-party in the transaction. Third, companies should consistently monitor third-party relationships, even after the initial due diligence is performed.  

Confidential Reporting and Internal Investigation

Companies should maintain mechanisms for reporting misconduct confidentially. An efficient and reliable system for investigating allegations should also be in place.  Continuous Improvement: Periodic Testing and ReviewA strong compliance program should evolve as the company changes over time. Changes in the business model, customers, area of operations, and the laws could impact the effectiveness of a corporate compliance program.  ConclusionIn sum, the government’s analysis of a corporation’s compliance program will look to answer three “common-sense” questions – 1) Is the program well designed? 2) Is it being applied in good faith? and 3) Does it work? Corporations should remember these points in developing, implementing, and updating compliance programs.

Jennifer H. Bouriat is a Criminal Defense Attorney at Pietragallo Gordon Alfano Bosick & Raspanti, LLP. She has worked in many locations throughout the United States, including New York, to assist corporations with their compliance programs, internal investigations, and in defending companies and/or their employees when the government pursues charges after investigations. You can contact Jennifer Bouriat directly for assistance.