For the Defense - Vol. 4, Issue 2 - 11

an obstruction of justice conviction), his recordings
are at the heart of the government's affidavits
supporting the charging documents.4 And they
likely will be a devastating component of the
government's case-in-chief, should the defendants
go to trial.
Recordings of a client's own words are harder
to impeach than the adverse testimony of a
cooperating witness, who has generally already
admitted wrongdoing. Moreover, recorded salacious
soundbites, like those allegedly made by Willkie Farr
& Gallagher LLP's co-chair that he wanted to ensure
that no "trouble comes out of this [arrangement
with Singer]," because "I am a lawyer. So, I'm sort
of rules oriented,"5 end up trumping the Fifth
Amendment at trial; the jury gets to hear and judge
the defendant even if he declines to take the stand.
Finally, recorded soundbites included in charging
documents usually receive widespread media
attention, possibly tainting the jury pool.
The risk that a conversation that is intended
(by at least one party) to be confidential will be
recorded and disseminated does not just arise
from those acting at the government's behest-
cooperating witnesses and confidential informants.
With the proliferation of smartphones, nearly
everyone with whom we come in contact has
unilateral audio (and video) recording capacity
in their pocket, and many people are motivated
to secretly record each other in the context
of business, personal, and domestic disputes.
Effectively counseling clients facing these situations
in Pennsylvania requires an understanding of the
Wiretapping and Electronic Surveillance Control Act
(the "Pennsylvania Wiretap Act"). Like many state
anti-wiretapping laws, the Act contains a general
prohibition on the interception, disclosure, and
use of oral (i.e., face-to-face) communications, in
addition to electronic and wire transmissions.

In-Person Conversations, or "Oral
Communications," Are Protected by
the Pennsylvania Wiretap Act
The Pennsylvania Wiretap Act protects an "oral
communication," such as a face-to-face conversation
or other verbal utterance not made electronically,
only if the speaker has a justifiable expectation of
privacy,6 i.e., a court must determine "whether the

speaker had a specific expectation that the contents
of the discussion would not be intercepted, and
whether that expectation was justifiable under
the existing circumstances," which is an objective,
rather than subjective, inquiry.7
The Act itself provides one such instance
of when a speaker would lack a justifiable
expectation that his conversation would not be
intercepted by excepting from the definition of
"oral communication" a communication made
in the presence of a clearly-identifiable law
enforcement officer (police officer, sheriff, or
deputy sheriff) who is using an approved device
to intercept the communication in the course of
law enforcement duties.8 Courts also have found
that speakers do not have justifiable expectations
that their conversations will be private and
not subject to recording when third parties are
present during a portion of the conversation;9
when the conversation occurs where others are
in earshot, without any precautions taken to
prevent overhearing;10 when the conversation
occurs in a shared or public place;11 and where
the communications at issue took place during
proceedings before an administrative agency where
testimony typically is recorded.12
Thus, the circumstances of the conversation,
including when and where it was held, what steps
were taken to ensure its privacy, and whether such
conversations typically are recorded (or not), are
critical to determining whether a conversation
or verbal statement is an "oral communication"
protected by the Act.

Interception is Generally Prohibited
The Pennsylvania Wiretap Act prohibits
intentionally "intercepting, endeavoring to
intercept, or procuring any other person to
intercept or endeavor to intercept [an] oral
communication," or intentionally disclosing,
using, or endeavoring to disclose or use, the
contents of an oral communication.13 Unless a
statutory exception (discussed below) applies,
violation of the Act constitutes a third degree
felony, punishable by a maximum of seven years'
imprisonment and a $15,000 fine.14
The Wiretap Act also creates a private cause
of action for those whose communications are

Vol. 4, Issue 2

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For The Defense

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For the Defense - Vol. 4, Issue 2

Table of Contents for the Digital Edition of For the Defense - Vol. 4, Issue 2
