You have the constitutional right to take photographs and make audio and video recordings in many circumstances. In the age of social media, where everything seems to be recorded and going viral, and you can find any content, cat videos, sexual content, and everything in between, it seems like there are no bounds. However, Pennsylvania has strict laws regarding wiretapping and recording. Whether recordings be audio or video, by any medium, phone call, in-person conversation, or online video calls, you can face severe consequences if you have illegally recorded someone.
If you have been accused of wiretapping or illegally recording, you need assistance from the LLF Law Firm. At the LLF Law Firm Criminal Defense Team, our attorneys are well-versed in wiretapping and recording laws. LLF Law Firm's finger is on the pulse of all issues related to consent, the legal requirements of recordings, and effective defenses in wiretap cases. Our Criminal Defense Team has defended clients facing a variety of wiretap matters, including those related to sensitive topics such as pornographic videos and recordings. Let us fight for your rights and preserve your freedom and reputation by calling the LLF Law Firm at 888-535-3686 or contacting us online.
Pennsylvania Recording and Wiretap Laws
In Pennsylvania, illegal recording can fall under a couple of different laws. The first is the Pennsylvania Wiretapping and Electronic Surveillance Control Act, which covers all types of recordings and is known as the wiretap law. The second law to be aware of is the Unlawful Dissemination of Intimate Images Act, which is the Commonwealth's revenge porn law. There are also a variety of Pennsylvania child pornography laws that you may be charged with if you have recorded a minor, even if you didn't know the person was a minor and obtained explicit consent for the recording.
Pennsylvania's Wiretap Law
Pennsylvania's wiretap law is more strict than federal laws on wiretapping. Federally, and in many other states, if one party consents to a recording or initiates a recording (in most cases excluding explicit content), that is perfecting legal. Under the federal, one-party consent rule, you can legally record without informing other parties. Pennsylvania, though, is what is called a two-party consent state. This means that all parties involved in a recording must give explicit or implicit consent to the recording and be aware that the recording is being made at the time it is happening.
There are numerous types of recordings that can get you in trouble under Pennsylvania's wiretap law. People illegally record others all the time for a variety of reasons. At LLF Law Firm, we have represented clients including:
- Those recording a spouse for purposes of using the material in divorce proceedings
- Landlords who have installed hidden cameras in tenant's apartments
- Employers intercepting personal emails and communications of employees without first notifying or obtaining employee consent
- Recording conversations with law enforcement without consent of the law enforcement party
- Recording of meetings or conferences, particularly where sensitive business information is discussed
- Installing listening or visual recording devices in a vehicle, for example, when a spouse suspects infidelity
- Posting private conversations on social media without the consent of all parties in the recording
Consequences of Violating Pennsylvania's Wiretap Law
Failing to obtain consent under Pennsylvania's wiretap law can result in criminal charges, including a third-degree felony. If found guilty, you can face up to seven years of jail time and up to $15,000 in fines.
Are the Exceptions to the Wiretap Law?
There are two core exceptions to Pennsylvania's wiretap law: public conversations and law enforcement. When a conversation or action takes place in a public setting where people understand that it's reasonable, their actions or conversation can be witnessed, and you may not need to get consent before recording. Of course, there are limitations, such as recording in dressing rooms, bathrooms, and settings where people have an expectation of privacy. If people are in public having a conversation that they clearly do not want to be overheard and are trying to conceal, it's likely courts won't agree with you that consent wasn't required.
The second main exception is with law enforcement in some situations. For example, you can record your interactions and other public interactions of others with law enforcement. There are situations where whether you need consent is controlled under judicial warrants. If law enforcement has a warrant, you should review it, and if your rights have been violated, call the LLF Law Firm immediately.
Pennsylvania's Revenge Porn Law
Pennsylvania's revenge porn law makes it a crime to share any visual depiction, photo, video, etc., of a current or former sexual intimate partner engaged in a state of nudity or sexual conduct, without their consent, with the intent to harass, annoy, or alarm them.
In this sexualized era, where someone can be nearly fully naked in an advertisement for a tube of toothpaste, what qualifies as nudity can be confusing. The law is pretty restrictive, defining nudity as "showing one's genitals, pubic area, buttocks without a fully opaque covering, or showing the female breast without a fully opaque covering of any portion below the top of the nipple."
Criminal charges for revenge porn range from a second-degree misdemeanor to a first-degree misdemeanor when the content involves a minor. Second-degree misdemeanors in Pennsylvania carry a maximum sentence of two years in prison and up to $5,000 in fines. A first-degree misdemeanor can result in up to five years in prison and a fine of up to $10,000.
Pennsylvania Child Pornography Laws
If you have recorded a minor child (anyone under the age of 18), you can be charged with numerous Pennsylvania child pornography laws, many of which carry steep penalties. Charges you can face if you have recorded a minor engaged in any sexually explicit content, which the law defines as "any visual depiction of a minor engaged in sexual acts or lewd exhibitions of genitalia," include:
· Production of child pornography
· Possession of child pornography
· Dissemination of child pornography
· Intent to disseminate child pornography
· Child pornography involving computers and the internet
Pennsylvania law and courts take the consequences for child pornography law violations seriously. For example, the production of child pornography is a first-degree felony where you may face up to 20 years in prison and fines of up to $25,000. Subsequent incidents of the production of child pornography in Pennsylvania can be charged as federal crimes with higher prison sentences.
Possession of child pornography is a third-degree felony on the first offense, with up to seven years in prison and fines of up to $15,000. Additional offenses are charged as second-degree felonies with up to ten years in prison and fines of up to $25,000.
If you share a recording considered to be child pornography, it is a second-degree felony where you can face up to ten years in prison and fines of $25,000 for first offenses. If you are charged with additional offenses, it is a first-degree felony with the same consequences as the production of child pornography.
Violating the law on child pornography involving computers and the internet will either be a second-degree or first-degree felony, depending on whether you have been previously found guilty of this crime.
Violation of any child pornography law in Pennsylvania will result in being placed on the Pennsylvania sex offender registry. The length of time you are placed on the registry will vary based on the crime you are found guilty of. It is imperative to call the LLF Law Firm immediately to have the best chances of mitigating and hopefully eliminating any criminal charges and subsequent jail time, fines, and sex offender registry listing.
Defenses in Pennsylvania Wiretap Cases
There are many ways for your LLF Law Firm attorney to present an effective defense in your wiretapping case. When you meet with our Criminal Defense Team, we will walk you through the options and how we intend to reduce or eliminate the criminal wiretapping charges against you. Your LLF Law Firm attorney will explain each defense to you in detail at your consultation. Below is an overview of a few common defenses.
Lack of Intent
Lack of intent is the most basic defense in wiretap cases. Demonstrating a lack of intent to make the recording, that it was actually created by accident, is a strong defense. Our phones always turn on in our pockets; social media and camera apps are always one accidental click away. Particularly when videos or recordings are blurry or unclear, you may have a strong case that your device was inadvertently on.
Consent
Consent is the strongest defense in a clear video or audio recording case. Unfortunately, people don't always think because they make recordings. Particularly, young people who have been raised on social media and technology often do not even realize that recording every facet of your life, including your life with others, isn't legal. When making videos and recordings, what will be said and done and who is in the crosshairs of the material aren't necessarily well thought through.
If someone alleges you recorded without their consent, they may be doing so out of shame or embarrassment of what is on the content. But even if a person is not proud of their participation in a video or recording, if they even implicitly consented, they cannot have a criminal claim against you for wiretapping. Your LLF Law Firm attorney is seasoned in presenting implied consent defenses. This means showing that your accuser was well aware of the device being used to record them and that it was or could have been in use at the time.
Public Conversation and Lack of Expectation of Privacy
As mentioned above, Pennsylvania wiretap law rarely covers conversations and public actions. The only exceptions, of course, are in areas where privacy is expected, such as restrooms, dressing rooms, physicians' offices, massage therapy facilities, and more.
People can also be legally recorded in places of business, outside homes, and other locations for security purposes. When a camera is visibly present, there is no expectation of privacy, even on personal property or in an isolated public space.
Law Enforcement
In some situations, law enforcement in Pennsylvania is permitted to record with only one-party consent. These situations are typically permissible under a valid warrant as part of a law enforcement investigation.
Lack of Evidence
If you are accused of criminal wiretapping, the person accusing you must prove your guilt beyond a reasonable doubt. Your LLF Law Firm attorney will put forward all possible defenses arguing that the recording is insufficient to meet this burden. Our Team can do this by advocating:
- That you are not the person who made the recording, but rather it was someone else
- That the material isn't good enough quality to support the case
- Issues with the chain of custody of the content, such as someone else editing the content
- Issues with how the content was collected and reported
During your LLF Law Firm consultation, our attorneys will learn the details of your case to ensure we present the strongest case possible and, ideally, eliminate the charges against you.
Statute of Limitations
Typically, in Pennsylvania, there is a statute of limitations of two years from the recording date for which a person may be charged with criminal wiretapping.
Defenses in Pennsylvania Revenge Porn Cases
While Pennsylvania courts take revenge porn cases seriously, if you are facing criminal charges for revenge porn, not all hope is lost. At the LLF Law Firm, our Criminal Defense Team often represents clients in your exact situation. Revenge porn cases are hardly slam dunks, and our Criminal Defense Team is well-versed in numerous defenses we can present based on the facts of your case.
Consent to Distribution
Particularly when it comes to explicit and sexual material, people often regret making this type of content. Regardless of the context in which the recordings were made, people's feelings about this type of content existing, especially when relationships change, can be complex. Unfortunately, for many who make explicit content, thinking ahead can be difficult at the moment. Rarely thought about are the consequences of explicit content leaving the bedroom (or device) of the intended recipient. Lack of forethought can result in one party claiming that they didn't consent for the intimate material to be made or kept, but that isn't how Pennsylvania law works. If the party consented to the video or other content being made and shared, they are on the hook and cannot change their mind to spite you. When your LLF Law Firm attorney argues consent, it is important that you provide them with all messages or communications that can prove the person provided consent.
Lack of Intent
To be found guilty under Pennsylvania revenge porn law, you must have intended to harm the other party depicted in the explicit material. It can be difficult for an opposing party to prove this, and a great opportunity for your LLF Law Firm attorney to present a strong defense. Our Criminal Defense Team will work to show that when you share the content in question, you never want to harm, harass, or embarrass the other party. Sharing explicit content can be unwise, and even done by accident, and still not considered illegal. Additionally, the other party will need to show they suffered emotional distress and embarrassment. This is no small feat in court and can involve calling psychiatric professionals as witnesses. Slight embarrassment is far from enough to land you in prison or face steep fines for revenge porn charges.
Lack of Sexually Explicit Material
What is and isn't considered sexually explicit material is a blurry line. Of course, certain acts are obvious, including:
- Depiction of genitalia, pubic area, anus, or nipple area on the female breast
- Sexual intercourse
- Sexual activities such as masturbation
While the law covers partial nudity where genitalia are partially covered/uncovered and sexual contact, what exactly that means in a legal setting can be argued. Your LLF Law Firm attorney can argue that the content doesn't meet the threshold for sexually explicit materials, even if it is sexual in nature.
Lack of Evidence
Of course, as with any criminal case, the opposing party will need to provide evidence that you committed the crime of disseminating revenge porn. As stated above, they will need to demonstrate your malicious intent and, of course, that you were, in fact, the person distributing the material. This defense
Statute of Limitations
As with Pennsylvania's wiretapping law, there is also a two-year statute of limitations on bringing a revenge porn lawsuit. The two years begin from the date that the sexually explicit materials were distributed, not from the date it was made. This means that any time you re-share the materials, the statute of limitations is extended. Don't make the common mistake of thinking you are off the hook if you are distributing content that was made over two years ago.
Your Rights to Take Videos and Recordings in Pennsylvania
As discussed above, there are many public settings where you can legally make recordings, but you can and should take additional precautions to ensure you are following the law. Particularly in intimate content situations, the criminal consequences are just too high to gamble on illegally making a video.
Getting consent from all parties in a recording. While it isn't fun (or sexy in an intimate setting), an easy way to get consent is to start every recording with consent. For example, I used language like "My name is Joe Smith, and I'm making this recording with Jane Smith's consent. Jane, can you please confirm your name and explicit consent to this recording." You can also get written consent if you feel more comfortable with that method. While consent can feel awkward, it is the law.
If you have any doubts about consent or recording in Pennsylvania, you can always contact the LLF Law Firm for a confidential discussion. Our Criminal Defense Team can provide you with tailored advice based on your situation. Getting up-front advice can help you avoid costly defenses of criminal charges down the line.
Can I be Charged With Wiretapping, Revenge Porn, or Child Pornography Outside of Pennsylvania?
Especially in the internet and social media age, when you share illegal materials, you are opening yourself to lawsuits in various jurisdictions. Here are a few common questions our LLF Law Firm Criminal Defense Team often gets about where you can face criminal charges in these types of cases:
Why am I Facing Charges in Pennsylvania When I Don't Live There?
If the alleged victim of the wiretap, revenge porn, or child pornography charge lives in Pennsylvania, they can file a lawsuit in Pennsylvania regardless of where you live.
Can I Face Charges in Pennsylvania and Other States?
You can also face charges in more than just a single state, especially if you have disseminated materials in those other states. For example, if you sent photos of an underage child from your residence in Pennsylvania to your friend in New Jersey, it is possible you can be charged in each state according to each state's laws.
What to Do if You Are Accused of Illegal Photos or Videos in Pennsylvania
If law enforcement has notified you or another party is threatening to file charges for any wiretapping, revenge porn, or child pornography charges, contact the LLF Law Firm immediately. Save all correspondence with involved parties; having this information can bolster your defense and strengthen your attorney's ability to negotiate the best possible deal in your case.
Fight Back Against Wiretapping Charges Today with LLF Law Firm
You can't fight this battle alone if you are accused of making any illegal recording. You need the LLF Law Firm Criminal Defense Team to defend your rights and freedom. Whether the charges against you are baseless or a misunderstanding, you cannot afford to gamble on your future by going in with anyone but the best. Let the LLF Law Firm Criminal Defense Team fight for you; call us at 888-535-3686 or contact us online.
