Police officers and lawyers in Pennsylvania have long been frustrated by the state’s wiretap law, which requires both parties to consent to a recording, and which was last updated before disposable cellphones existed or text messaging became popular. In recent years, authorities say, they have at times been forced to discard strong evidence in criminal cases, such as a secret recording made by a Montgomery County teenager who was being abused by her stepfather.
Last week, the state House passed legislation that would revise the statute for the first time since 1998. The bill, expected to be considered by the state Senate in the fall, would expand residents’ ability to make secret recordings of criminal activity. It also addresses many technological advances, such as the use of disposable, prepaid cellphones.
“When this law was enacted, we were tapping home phones,” Montgomery County District Attorney Risa Vetri Ferman said. “Now I can’t even remember the last time we did that.”
Drug investigations often involve suspects who change cellphone numbers rapidly in an attempt to evade police detection. Under current law, Ferman said, authorities are forced to obtain a new court order for a wiretap each time a suspect gets a new phone. The new law would authorize authorities to obtain a wiretap for a person, not a phone number, allowing police to intercept multiple phone lines at once.
Under current law, a child who is approached by an online predator or via text message sometimes must keep communicating with the suspect, under police direction, to gather evidence. Under the proposed law, a police officer would be allowed to text a suspect from the child’s phone, or chat online using the child’s screen name.
The bill also would afford greater protection to victims by allowing them to make secret recordings of crimes committed against them. Ferman cited a Montgomery County teenager who last year recorded her own sexual abuse at the hands of her father, only to be told that the recording was inadmissible in court and that she could be charged with a crime for making it. The girl ultimately had to testify at a trial, which ended in conviction.
“It is absolutely the best evidence of the crime, and we were prohibited from using it,” Ferman said.
The bill passed, 145-52, but drew opposition from some Republicans and Democrats, as well as the state chapter of the ACLU, all of whom voiced concerns about the effect the measure would have on the right to privacy. The ACLU objected specifically to a provision that would allow someone to make a secret recording if the person doing the recording believed he or she might be collecting evidence of a first-degree felony or a violent crime.
“It requires citizens to essentially predict the future,” said Andy Hoover, legislative director of the ACLU of Pennsylvania. “It empowers civilians to become quasi-detectives and go on fishing expeditions.”
If passed, the law would allow civilians to conduct investigations in a way the government is not allowed to do, Hoover said — but the government would benefit from it.
State Rep. Mark Cohen (D., Phila.) echoed Hoover’s concerns.
“I think privacy should mean something,” he said. “I don’t like the idea of targeting every phone used by one person — seems like you’re targeting people, not crimes.”
Ferman described the criticism as “manufactured hysteria.”
“We don’t want to encourage others to tape others just for the hell of it,” she said. “We’re talking about this in regard to serious crimes, not retail theft.”
State Rep. Ron Marsico (R., Dauphin), who sponsored the bill, said he was surprised by some of the criticism. The bill has the backing of the Attorney General’s Office, the state police, the Pennsylvania District Attorneys Association, and other groups.
“This is supported by every major law enforcement agency,” Marsico said. “It gives them the tools they need to do their job.”