RECORDING A CUSTODY CONFERENCE AND POSTING THE RECORDING ON FACEBOOK IS NOT A GOOD IDEA
The PA Superior Court has decided the case of Commonwealth v. Cline, No. 641 EDA 2017 (December 29, 2017), holding that Cline knowingly or intentionally intercepted and disclosed discussions that qualified as “oral communications” under the statute when he surreptitiously recorded a custody hearing attended by his ex-wife and him at the courthouse.
“The evidence demonstrated that the custody conference took place at the county courthouse, which displays signs at the entrance requiring all visitors to turn off cell phones during their visit. The conference, itself, took place in a room that was inaccessible to the public, required a swipe-card to gain entry, and was guarded by a deputy. Only the parties, the master, and, in cases where the need for a security presence is anticipated, a deputy are present at the closed-door conference.”
“The conference was not recorded, the office was not wired for recording, and, according to Master Don Klein who presided over the parties’ conference, no one was permitted to record the proceedings. This is so, Master Klein explained, because the Master will often elicit very personal information during the conference with the objective of assisting the parties to reach an agreement that is in the best interest of their children. As such, the parties expect confidentiality and privacy when they are asked to reveal candidly these emotional and personal aspects of their lives, the Master explained.”
At trial, Cline’s ex-wife testified that privacy was always maintained during the parties’ previous conferences before Master Klein and, she would have refused to participate if she knew her comments were to be recorded and publicized.
During the conference, Cline announced that he was recording the hearing with his cell phone. The Master advised him he could not record at which point Cline put the phone in his pocket, ran out of the room, and left the courthouse. He thereafter posted the recording on Facebook.
The jury convicted Appellant of violating the Wiretap Act and, after being sentenced to 11 1⁄2 to 23 months incarceration, followed by three years’ probation, Cline filed this appeal.
The Superior Court explained that, in order to have violated the Wiretap Act, a person must “intentionally intercept, endeavor to intercept, or procure any other person to intercept or endeavor to intercept any wire, electronic or oral communication” or “intentionally disclose or endeavor to disclose to any other person the contents of any wire, electronic or oral communication, or evidence derived therefrom, knowing or having reason to know that the information was obtained through the interception of a wire, electronic or oral communication.”
The Superior Court further explained that the Wiretap Act defines “intercept” as “[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.” And, “oral communication” is defined in relevant part as “[a]ny oral communication uttered by a person possessing an expectation that such communication is not subject to interception under circumstances justifying such expectation.”
“The hallmark of an ‘oral communication’ protected under the Wiretap Act is a communication for which 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.'”
In summarizing Cline’s issue on appeal, the Superior Court understood his challenge to assert only that the Commonwealth failed to prove he “knew that recording the hearing and/or posting it online was against the law, as the signs merely said ‘no cell phones’ but did not prohibit recording.”
The appellate court, however, explained that Cline failed to address the actual issue, i.e. – he focused on whether the evidence proved that he knew it was unlawful for him to use a recording device in the courthouse as opposed to whether it proved he knowingly and intentionally intercepted and disclosed oral communications, regardless of the location where the interception was made.
Specifically, the Superior Court noted that Cline failed to advance any argument that the custody conference did not involve protected “oral communications” for purposes of the Wiretap Act. Instead, the Court continued, Cline argued only that it was the Commonwealth’s burden to prove he knew the Wiretap Act proscribed the conduct in which he engaged, and absent such proof, his misunderstanding of the Wiretap Act’s scope could serve as a viable defense.
In sum, the Superior Court rejected Cline’s argument, concluding that his prosecution turned on proof that he knew or intentionally intercepted and disclosed discussions that qualified as “oral communications” under the statute. Accordingly, his judgment of sentenced was affirmed.
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