Professor: Certain Social Media Posts Could Violate Pa. Wiretap Law

PITTSBURGH (KDKA) – When you think of wiretapping, what comes to mind?

In the movies, it usually looks like this: a person on a landline phone and agents listening to the conversation from a van down the street. You probably do not think of your cell phone as a means of surveillance. However, depending on the type of recording you are doing with your cell phone, you may be committing a crime and not even know it.

We can share from almost anywhere. All you need is a cell phone, a social media platform, and a good internet connection. However, a thoughtless recording could get you into legal trouble if you do not follow your state’s laws.

“It’s not a simple thing — especially in Pennsylvania,” said criminal law expert and Professor at Duquesne University School of Law, Joseph Mistick.

KDKA Legal Editor Julie Grant sat down with Professor Mistick to discuss Pennsylvania’s Wiretapping and Electronic Surveillance Control Act, found at 18 Pa. C.S. §§ 5701-5782.

“The Wiretap Act itself is comprised of 70 pages with annotations, which is more than the average citizen can get their arms around, let alone lawyers who struggle with it,” said Professor Mistick.

Pennsylvania is one of 12 two-party consent states. This means everybody in a private conversation must agree before it can be audio taped. Otherwise, it’s a violation of the Wiretap Act and felony offense.

The other 11 two-party states are California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire and Washington.

“There are probably people violating this Wiretap Act willy-nilly, every day, without even realizing it,” said Professor Mistick.

Rajan Kher is working on her master’s degree at the University of Pittsburgh.

“I record videos on Facebook, Instagram, and Snapchat sometimes,” said Kher.

She told KDKA she had never heard of the Wiretap Act, but sees lots of people recording videos with sound every day.

“They keep recording videos, they keep posting their stories on Snapchat, Instagram, so sometimes I feel like even I am in their video somewhere,” said Kher.

When we are out in public, we generally do not have an expectation of privacy.

“As we sit here now, I’m willing to bet there are a couple cameras on us other than your own that are monitoring the activities in this little plaza,” said Professor Mistick.

Things can get surprisingly complicated, even in public, if the video is recording audio along with it without someone’s permission. According to Professor Mistick, “You need to be careful because you will inadvertently pick up conversations for which you have no authority to record.”

From a privacy perspective, two-party consent states offer citizens more protection.

“The good news here is that Pennsylvania zealously protects the right of privacy. So, if you look at it from that perspective this is good news. When you look at it from the perspective of young people who want to use these various social media applications, it’s probably not such good news for them because they don’t know whether they’re committing a third-degree felony or not from one posting to the next,” said Professor Mistick.

We do not usually hear about these cases heading to court because prosecutors have discretion and may choose whether to pursue them.

“The great, great overwhelming majority are not prosecuted because they are of no moment, they are of no negative impact on anyone,” said Professor Mistick.

According to Professor Mistick, people who want to obey the law can be easily frustrated trying to understand what is and is not a wiretap violation.

“As lawyers, we love to be able to show off and tell them it’s simple and here’s that bright line — just stay on this side of it. But this is one area where we can’t,” said Professor Mistick.

According to Professor Mistick, part of the problem is the Wiretap Act was written before social media ever existed.

“The best practice is to only post video or if you are going to post audio, make sure it’s from a discrete group, you and your friends, and everybody has granted permission to do so,” said Mistick.

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