Several people e-mailed me about this story (BenSwann.com) [UPDATE: Pittsburgh TribLive posted a story Sunday night that is consistent with the BenSwann.com story; I’m still trying to get a transcript or other court documents myself; thanks to commenter SykesFive for the pointer]:

A South Fayette High School sophomore claims to have been bullied all year at his new school located in McDonald, Pennsylvania. In February, the student made an audio recording of one bullying incident during his special education math class. Instead of questioning the students whose voices were recorded, school administrators threatened to charge him with felony wiretapping before eventually agreeing to reduce the charge to disorderly conduct. On Wednesday, March 19, the student, whose name we have agreed to not include in this story, was found guilty of disorderly conduct by District Judge Maureen McGraw-Desmet….

The student and his mother, Shea Love, testified before the magistrate that the boy has been repeatedly shoved and tripped at school, and that a fellow student had even attempted to burn him with a cigarette lighter. The defendant is, according to school records, a well-behaved student with no history of disciplinary action. He was, however, previously diagnosed with a comprehension delay disorder, which is a slower processing speed for information than is normal, ADHD, and an anxiety disorder. He says the bullying treatment is especially harsh and academically disruptive during his special education math class, in which students with behavioral problems are also placed. On February 11, after doing research on several anti-bullying websites, he used his school approved personal iPad to make a seven-minute audio recording of his classroom experience. He played the recording at home for his mother. Outraged, Love, a former Air Force Morse code operator, transcribed the audio before calling school administrators.

According to Love, as the teacher is heard attempting to help her son with a math problem, a student says, “You should pull his pants down!” Another student replies, “No, man. Imagine how bad that (c**t) smells! No one wants to smell that (t**t).” As the recording continues, the teacher instructs the classroom that they may only talk if it pertains to math. Shortly thereafter, a loud noise is heard on the recording, which her son explained was a book being slammed down next to him after a student pretended to hit him in the head with it. When the teacher yells, the student exclaims, “What? I was just trying to scare him!” A group of boys are heard laughing….

I cannot speak to whether this account is accurate, since I haven’t seen the trial transcripts or other relevant documents myself. But I can speak to whether this sort of recording is indeed a crime, itself an interesting question that I’ve followed for a while (see, e.g., this post).

1. To begin with, the law on this varies from state to state. Most states, for instance, are “one-party consent” states, in which any person involved in a conversation is free to record the conversation, even in secret from the other parties. But some states, including my own California, and Pennsylvania, are “two-party consent” states, in which it’s a crime to record a conversation unless one has the consent of all the parties to the conversation (or at least unless the parties know the conversation is being recorded).

Likewise, some states only bar recordings of conversations that are seen as private (more on that later). Others have no such limitation.

2. What then does Pennsylvania law provide? Glad you asked! The relevant statute, 18 Penn. Consol. Stats. § 5703, generally makes it a felony to “intentionally intercept[] … any wire, electronic or oral communication.” “Intercept" is defined to cover any “[a]ural or other acquisition of the contents of any wire, electronic or oral communication through the use of any electronic, mechanical or other device,” so an ordinary audiorecording will qualify. (Though the law is sometimes labeled “wiretapping,” it also includes other forms of unconsented-to recording.) Section 5704 then has many exceptions for law enforcement and certain communications businesses, and two for the general public:

  • Exception 4, which lets a person “intercept a wire, electronic or oral communication, where all parties to the communication have given prior consent to such interception.”
  • Exception 17, which lets “[a]ny victim, witness or [licensed] private detective” “to intercept the contents of any wire, electronic or oral communication, if that person is under a reasonable suspicion that the intercepted party is committing, about to commit or has committed a crime of violence and there is reason to believe that evidence of the crime of violence may be obtained from the interception.” Crime of violence, though, refers only to the more serious violent crimes, such as homicide, sexual assault, aggravated assault [§§ 2702(a)(1)-(2)**], burglary, robbery [§§ 3701(a)(1)(i-(iii), 3702(a)]; simple assault is not include.

So far, this sounds quite broad, covering any recording, even in a public place. But “oral communication,” it turns out, is defined in § 5702 to include an important limitation:

“Oral communication.” Any oral communication uttered by a person possessing an expectation that such communication is not subject to interception under circumstances justifying such expectation….

Counterintuitive, I think, since in ordinary language “oral communication” says nothing about expectations of interception. It would have been better to label this something else (even something more cumbersome), or to include the “expectation” language in the § 5703 prohibition. Still, the limitation is present, confusing as the structure might be.

But wait, there’s more. On its face, “circumstances justifying [an] expectation” “that such communication is not subject to interception” seems to turn on how commonly recording devices are used in a particular situation. (“Intercept” is defined as recording “through the use of any electronic, mechanical or other device.”) For instance, one might reasonably expect that no one is recording conversations in a high school classroom simply because such recordings are actually quite rare. Practice would, under this interpretation, dictate legality: If certain kinds of communications usually aren’t recorded, then they couldn’t lawfully be recorded (unless some exception applies). And this would be so quite without regard to whether the communications are usually seen as private; one could have a conversation in a high school classroom that is overheard by 20 students and a teacher, and there still would be a justifiable expectation that the conversation won’t be recorded.

Yet the Pennsylvania Supreme Court (in Agnew v. Dupler (1998)) has rejected this reading, and concluded that “one cannot have an expectation of non-interception absent a finding of a reasonable expectation of privacy.” And because it’s hard to see how someone would have a reasonable expectation of privacy in a loud conversation heard throughout the classroom, I don’t see any basis for a wiretapping charge here.

(The dissenting Justices in Agnew argued, quoting a lower court case, that “For purposes of violation of the Wiretap Act, while we consider the expectation of privacy as a factor, it cannot be the determining factor in our analysis.” For instance, they reasoned, “if one is speaking with the town gossip at a public swimming pool under circumstances insuring that the gossip is not wearing a body wire, one’s expectation of non-interception is very high, but the expectation of privacy is very low.” But the majority specifically rejected this argument.)

3. Some of the broader recording bans face serious First Amendment problems, as decisions such as Glik v. Cunniffe (1st Cir. 2011) and ACLU v. Alvarez (7th Cir. 2012) indicate. Courts have recognized that, if you can’t record events, you often can’t effectively communicate about what happened. But the precise scope of this First Amendment protection is not clear. I think it should apply to recording things that aren’t reasonably seen as private, especially in public places. But that’s not yet well-settled, and I’m inclined to say that in places — such as schools — that aren’t traditional public fora, the government may have considerable authority to restrict recording (if it does so through sufficiently clear rules). In any event, the First Amendment issue shouldn’t come up here, since the statute, interpreted the way the Pennsylvania Supreme Court has interpreted it, doesn’t purport to ban this sort of recording of a broadly audible conversation.

4. Nor do I see any basis for a “disorderly conduct” conviction here, though I stress again that I can’t be sure without knowing more about what evidence was introduced at trial. The subsection of the Pennsylvania disorderly conduct statute that seemed to be applied, 18 Pa. Consol. Stats. § 5503(d), makes it a crime to “create[] a hazardous or physically offensive condition by any act which serves no legitimate purpose of the actor." But it’s hard to see how this recording — again, if the facts are as described in the story — “serve[d] no legitimate purpose of the actor,” given that it was aimed at proving that the student was being mistreated.

In any event, if anybody has more facts on this story, I’d love to hear them; but the above should give a sense of the law that would be applied to the facts that the story describes, if it describes them accurately.