For the Defense - Vol. 4, Issue 2 - 12

improperly intercepted. A host of civil penalties
are recoverable: "[a]ctual 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," punitive damages, and
reasonable attorney's fees and costs.15 These civil
damages are recoverable against government
actors, as the Act contains an express waiver of
sovereign immunity.16 However, good faith reliance
on a court order or the Wiretap Act's provisions
constitutes a defense.17

Two Relevant Exceptions to the
General Prohibition
There are 18 exceptions to the Wiretap
Act's general prohibition against intercepting
electronic, wire, and oral communications; not
all are applicable to oral communications.18 Two
that criminal defense practitioners are likely to
encounter are discussed below.
1. All Parties Consent to the Recording
Section 5704(4) of the Pennsylvania Wiretap
Act provides that it is not unlawful and no prior
court approval is required to record or intercept
an oral communication "where all parties to the
communication have given prior consent to such
interception."19 Obtaining express prior consent,
i.e., where the speakers affirmatively agree to
the recording, is the clearest (and easiest) way to
ensure compliance with the Act. However, implied
consent, such as when a party is warned that the
communication will be recorded, also may be
sufficient.
The concept of implied consent has been
adopted by the Third Circuit, most notably in the
context of inmate telephone calls,20 where the
inmate's use of facility phones constitutes implied
consent to the recording when he is aware that
calls will be monitored and recorded.21 At least
one Pennsylvania court has explicitly endorsed the
concept of implied consent in the context of this
exception. In Consolidated Rail Corp. v. Colville,22
the Allegheny Court of Common Pleas held that
a railroad's recording of dispatcher calls to work
crews and radio communications from the train
crews regarding trains' movement did not violate
the Wiretap Act. Recognizing that the Act "perhaps

12

For The Defense

l

Vol. 4, Issue 2

wisely, does not specify or elaborate on the consent
concept other than to require 'consent,'" the court
held that the law did not necessarily require "some
affirmative conduct on the part of the employees
indicating their consent."23 Rather, the court held that
because the employees continued to participate in
the recorded conversations after being informed in
writing that such calls would be recorded and hearing
an intermittent beep to remind them that recording
was occurring, they had impliedly consented to
recording.24 The court also stressed that its conclusion
was consistent with the fact that the vice at which the
Act was aimed-the surreptitious invasion of privacy-
was not implicated in the work-related recordings.25
Challenging the existence or validity of one party's
consent is the best tool to challenge the disclosure
of the contents of a recorded communication. It is
important to keep in mind that this exception applies
to prior consent, and it remains an open question
under Pennsylvania law whether statements made
during the course of a recorded conversation can
satisfy this requirement. In United States v. Arrington,
the Pennsylvania Supreme Court declined to resolve
the issue of whether recorded party's "implicit
consent to the recording of the communication via
statements made during the conversation satisfies the
language of the Wiretap Act requiring 'prior consent'
for the interception."26 This stands in contrast to the
Colville implied consent case discussed above, where
notice that the conversation would be recorded was
provided before any conversation took place.
2. Law Enforcement Investigation:
When Single Party Consent is Sufficient
In some circumstances, one party's consent to
the recording is sufficient. Section 5704(2) permits
one party to consent to the interception of oral
communications "involving suspected criminal
activities," subject to compliance with certain
procedures and restrictions. Under this exception,
the interception can be made with the consent of a
cooperating witness or confidential informant ("CI")
-someone working at the request or direction of law
enforcement to record a third party surreptitiously.
Although often associated with undercover
drug purchases, murder for hire, and bribery, CI
recordings are made and used by the government
in a wide range of criminal cases, including white



For the Defense - Vol. 4, Issue 2

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

Contents
For the Defense - Vol. 4, Issue 2 - 1
For the Defense - Vol. 4, Issue 2 - 2
For the Defense - Vol. 4, Issue 2 - Contents
For the Defense - Vol. 4, Issue 2 - 4
For the Defense - Vol. 4, Issue 2 - 5
For the Defense - Vol. 4, Issue 2 - 6
For the Defense - Vol. 4, Issue 2 - 7
For the Defense - Vol. 4, Issue 2 - 8
For the Defense - Vol. 4, Issue 2 - 9
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For the Defense - Vol. 4, Issue 2 - 11
For the Defense - Vol. 4, Issue 2 - 12
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For the Defense - Vol. 4, Issue 2 - 14
For the Defense - Vol. 4, Issue 2 - 15
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For the Defense - Vol. 4, Issue 2 - 46
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