You are in a contentious custody case. You and the other parent argue. Sometimes you are on the “giving” end, but most of the time you are the one receiving an unwarranted and unnecessary earful. While you know better than to give the other parent a verbal dress-down in front of your child, the other side is not able to control him or herself to the point where they can hold their tongue in tense situations. You know this is inappropriate, so you decide you are going to catch him or her in the act by recording the next outburst.
Is there anything wrong with this? That answer depends on a lot of factors including where you are, where the other side is, what you are recording – be it audio, video or both – and what state you are in. Since I am in Pennsylvania and most of my clients are in Pennsylvania, I will focus on Pennsylvania’s Wiretap Act. Realize that the law may be different in other states.
The Pennsylvania Wiretap Act is designed to protect ordinary citizens’ right to privacy in their homes and private conversations, basically anywhere they have an expectation of privacy. While the major impact of the Wiretap Act is in criminal investigations conducted by law enforcement, there are everyday implications as well, especially in this era of increased availability to technology. Case in point, you might not think that anything you do could possibly be considered a “wiretap”, but the smart phone in your pocket falls within the definition of devices that are subject to the limitations of the Wiretap Act.
Under Pennsylvania’s Wiretap Act, in any conversation between two people where one has an expectation of privacy, both parties need to consent to being recorded. In other states, only one side needs to consent, but in Pennsylvania both sides need to clearly consent. So, if your ex starts laying into you during a phone conversation and you record it without their knowledge, you have violated the Wiretap Act. Different story if it is a voice mail. In that situation, the person leaving the voice mail knew he or she was being recorded, so there was no violation.
In my next scenario, in your house your ex is verbally abusive and you record the conversation. Can you use that recording in custody court? The general answer is probably no, unless you can somehow show that the ex knew he or she was being recorded or had no expectation of privacy. Same answer for a video recording.
Now let us move the conversation outside the house and a security camera records video and audio in the driveway, in plain sight of neighbors and the general public. The question becomes whether or not the verbally abusive ex had an expectation of privacy in your driveway. My answer to that would be “no” and that the video and audio can be used. If it is a quiet conversation and both speakers had an expectation that no one would be listening, my answer would be different but a loud outburst for all to see and hear, I do not see a violation. There are also situations where there is no violation in making a video, but there is a violation in using both the video and the accompanying audio. That would include security cameras and “Ring” doorbells.
I could go on and on with scenarios in that real life and what can potentially happen when technology gets involved, gives rise to an infinite number of scenarios. My point is much more simple, before you actually record someone, no matter how egregious the verbal attack may be, think about the secondary effects of making that recording in that there are not only criminal implications to making an illegal recording, but there are civil, meaning money damages, implications as well. Think before you hit the “record” button.