Law / United States / 
Pennsylvania
Wiretapping and Electronic Surveillance Control Act, Interception, Consent Exception and Civil Action
18 Pa.C.S. §§ 5703, 5704(4), 5725
In force.
An interception and recording consent rule binding public and private bodies.
- Obligation class
- Consent, Prohibition
As of .
What it requires
- Do not intercept, disclose or use the contents of a wire, electronic or oral communication unless every party has given prior consent or another exception in section 5704 applies; outside law enforcement, being a party to the communication is not an exception.
- The rule covers a telephone call and any electronic communication, including what a visitor sends through a website; it covers an in-person oral communication only where the speaker expected, in circumstances justifying the expectation, that it would not be intercepted.
- If your website loads a third-party script that routes a visitor's communications to the vendor's servers, get the visitor's prior consent; it is no defense that the visitor communicated directly with those servers, and consent may be implied only where the visitor knew or should have known of the interception.
- If you record telephone marketing or customer service communications for training, quality control or monitoring, have one party's consent, use the recordings only for training or quality control, and destroy them within one year unless federal or State law requires otherwise.
If you get it wrong
Criminal exposureYes
Private right of actionYes
Criminal exposure note
Intentionally intercepting, disclosing, or using the contents of a wire, electronic, or oral communication in violation of section 5703, or procuring another person to do so, is a felony of the third degree.
Statutory damages
Actual damages, but not less than liquidated damages computed at the rate of $100 a day for each day of violation or $1,000, whichever is higher, plus punitive damages and a reasonable attorney's fee and other litigation costs reasonably incurred (18 Pa.C.S. section 5725(a)).
- As of
- Currency
- USD
- Per person minimum
- 1,000
Who enforces it
Enforcement body
A private civil action under 18 Pa.C.S. section 5725; criminal prosecution under section 5703.
Settledness
The Third Circuit held that the Act has no direct-party exception outside law enforcement, so a website's third-party marketing vendor that receives a visitor's communications through its script can be liable, and that the place of interception is the point at which the signals were routed to the vendor's servers; it left to the district court whether the visitor consented through the site's privacy policy and where the routing began.
- As of
- Case link
- https://www2.ca3.uscourts.gov/opinarch/212203p.pdf
- Case citation
- Popa v. Harriet Carter Gifts, Inc., 52 F.4th 121 (3d Cir. 2022)
- Open questions
- Where must a website visitor's browser be located, or where must a third-party vendor's script first begin routing the visitor's communications, for the interception to be treated as occurring within Pennsylvania?
What this law does
Section 5703 makes it a felony of the third degree to intentionally intercept, disclose, or use the contents of a wire, electronic, or oral communication, or to procure another person to do so. Section 5704(4) excepts a person who intercepts a wire, electronic, or oral communication where all parties to the communication have given prior consent, so the consent of only one party, including a party's own consent, does not satisfy the Act.
The Third Circuit held in Popa v. Harriet Carter Gifts, Inc. that the Act has no exception for a party to the communication, save for law enforcement under specific conditions, so a website's third-party marketing vendor that received a visitor's communications through its script, and the website that used it, could not avoid liability on the ground that the visitor communicated directly with the vendor's servers.
It held that the place of interception is the point at which the signals were routed to the vendor's servers, rejecting the reading that a communication is intercepted only where a server receives it, which would let a company capture the data of people in other states by locating its servers elsewhere.
The court noted that, under the Pennsylvania Supreme Court's reading, prior consent can be implied where the person knew or should have known of the recording, and left to the trial court whether the website's privacy policy gave the visitor that notice.
An oral communication is covered only where the speaker expected, in circumstances justifying the expectation, that it would not be intercepted, and the term excludes an electronic communication; a wire or electronic communication carries no such condition.
The personnel of a business engaged in telephone marketing or telephone customer service may intercept those communications for the sole purpose of training, quality control or monitoring where one party has consented, may use the recordings only for training or quality control, and must destroy them within one year unless federal or State law requires otherwise.
A communication service provider's staff may intercept a communication in the normal course of employment where necessary to render the service or protect the provider's rights or property, but the provider may not use service observing or random monitoring except for mechanical or service quality control checks.
A person whose communication is intercepted, disclosed, or used in violation of the chapter has a civil action under section 5725 against any person who intercepts, discloses or uses it or procures another to do so, for actual damages, but not less than liquidated damages computed at $100 a day of violation or $1,000, whichever is higher, plus punitive damages and a reasonable attorney's fee and litigation costs. Good faith reliance on a court order or on the chapter's provisions is a defense to that action.
When LexLint raises it
When your app profile says your app records conversations, processes voice recordings or deploys a chatbot.