Reporter's Recording Guide
Last updated August 2020Compare
It is unlawful to intentionally record or disclose the contents of a private in-person conversation or any telephone or electronic communication without the consent of all parties.
The state also prohibits images made or disclosed in violation of its hidden camera law.
Violators of the recording law are subject to both criminal and civil penalties, while the hidden camera law has criminal penalties.Compare
To lawfully record an in-person conversation in Pennsylvania, an individual must obtain the consent of all parties to the conversation. 18 Pa. Cons. Stat. Ann. §§ 5703, 5704(4). Courts will find consent, however, in instances in which parties knew or reasonable should have known the conversation was being recorded. Commonwealth v. Byrd, No. 34 WAP 2018, 2020 WL 4344904, at *6 (Pa. July 29, 2020).
The consent requirement only applies where the parties have a reasonable expectation that their in-person conversation is not being overheard or recorded. 18 Pa. Cons. Stat. Ann. § 5702. Thus, a journalist does not need consent to record conversations in public where there is no reasonable expectation of privacy.Compare
Telephone and electronic communications
It is unlawful to record or otherwise intercept any telephone or electronic communication without first obtaining the consent of all participants. 18 Pa. Cons. Stat. Ann. §§ 5703, 5704(4). The law covers telephone and electronic communications regardless of the parties’ expectation of privacy. Commonwealth v. Deck, 954 A.2d 603, 609 (Pa. Super. Ct. 2008). Courts will find consent, however, in instances in which parties knew or reasonable should have known the conversation was being recorded. Commonwealth v. Byrd, No. 34 WAP 2018, 2020 WL 4344904, at *6 (Pa. July 29, 2020).
The Pennsylvania Supreme Court has held, however, that parties to emails, chats or text messages may record those conversations without the consent of the other parties. Commonwealth v. Cruttenden, 58 A.3d 95, 96 (Pa. 2012) (citing Commonwealth v. Proetto, 771 A.2d 823 (Pa. Super. Ct. 2001)). Unlike with telephone calls, parties to these conversations know by their very nature that they are likely to be recorded and thus have consented to that recording by participating in the conversation. Id. at 98.
Third parties who are not participants in text message or email conversations cannot intercept or record those conversations without the consent of all participants. 18 Pa. Cons. Stat. Ann. § 5703. However, the state's intermediate appellate court has held that sharing text messages after they have been received does not require consent, because the law only applies to interceptions that occur at the same time as the transmission or receipt of the message. See Commonwealth v. Diego, 119 A.3d 370 (Pa. Super. Ct. 2015) (distinguishing a simultaneous interception from a scenario in which a third party reads the text messages over the receiver's shoulder as they are received).Compare
It is a misdemeanor (i) to photograph or record — without the subject’s consent — a fully or partially nude person in a place where the person has a reasonable expectation of privacy; (ii) to use a hidden camera to secretly photograph or film a person’s “intimate parts” that the person does not intend to be visible to the public, whether or not covered by clothing; and (iii) to transmit any images obtained by these means. 18 Pa. Cons. Stat. Ann. § 7507.1.
The law, however, does not criminalize the use of recording devices for other purposes in areas to which the public has access or there is no reasonable expectation of privacy (e.g., filming conversations on public streets or a hotel lobby).Compare
Illegally recording an in-person, telephone or electronic communication is a felony offense, punishable by up to seven years in prison and up to a $15,000 fine. 18 Pa. Cons. Stat. Ann. §§ 1101, 1103, 5703.
Violation of the hidden camera law is a misdemeanor, subject to up to a year in prison and up to a $2,500 fine. 18 Pa. Cons. Stat. Ann. §§ 1101, 1104, 7507.1.Compare
Anyone whose in-person, telephone or electronic communication has been recorded or disclosed in violation of the law can bring a civil suit to recover the greater of actual damages, $100 a day for each day of violation, or $1,000, and can recover punitive damages, attorney’s fees and court costs as well. 18 Pa. Cons. Stat. Ann. § 5725.Compare
Intentionally disclosing or using the contents of an in-person, telephone or electronic communication while knowing or having reason to know it was obtained through illegal recording is a felony. 18 Pa. Cons. Stat. Ann. § 5703.
The hidden camera law also prohibits the transfer of images obtained in violation of the law. 18 Pa. Cons. Stat. Ann. § 7507.1.
If a journalist received an illegally recorded conversation and was not involved in the illegal conduct, the First Amendment likely protects the publication of such material, to the extent it is a matter of public concern and truthful. See Bartnicki v. Vopper, 532 U.S. 514 (2001). For more information, see this guide’s introductory chapter here.Compare
Right to record government officials in public
A growing consensus of courts have recognized a constitutional right to record government officials engaged in their duties in a public place. This First Amendment right to record generally encompasses both video and audio recording. For more information on the right to record broadly, see this guide’s introductory chapter here.
The U.S. Court of Appeals for the Third Circuit, which includes Pennsylvania, has held that there is a First Amendment right to film and audio record “police officers conducting their official duties in public.” Fields v. City of Philadelphia, 862 F.3d 353, 356 (3d Cir. 2017).Compare