School hallways, school buses, and other common areas of school building, such as cafeterias and gymnasiums, are routinely monitored by authorized surveillance cameras. Carefully crafted board polices and administrative regulations ensure that the use of these cameras is compliant with applicable State and Federal laws. Accordingly, they ensure the public has prior notice of recordings, provide guidelines as to where cameras may/may not be directed, and clarify how the information gathered may be utilized by the school.
Policies also typically advise as to whether audio, or only video, recording is permitted. The information captured on these cameras can play an important role in assisting administrators and law enforcement with official investigations. But what happens when unauthorized recording devices that fall outside of these board policies are used to record conversations that occur on school property and/or on school-provided transportation without the consent of the individuals being recorded?
The popularity of smart phones and tablets, along with accessories such as digital watches, pens, and even glasses, with recording capabilities, makes it easy to capture audio and/or video recordings discretely. Recently, we have seen an increase in reports of unauthorized audio recording in schools. Earlier this school year, a district in Monroe County made headlines when a grand jury recommended criminal charges be filed against two district employees who allegedly placed a recording device (capable of recording both audio and video) on a vending machine in the faculty breakroom of an elementary school in an effort to catch misconduct by a school janitor. Another recent case out of Virginia involved an allegation that a mother put a recording device in her daughter’s book bag after her reports that her daughter was being bullied at school were ignored. The mother was charged under Virginia law with a felony for violating the State’s wiretap laws. Still other prosecutions have come out of school employees secretly recording meetings with administrative staff.
The law treats audio recording differently than video recording, as it deems audio recording to be potentially more invasive to an individual’s privacy rights. In this regard, an audio recording that is taken without consent of the parties may violate state and/or federal wiretapping laws. Federal wiretap laws permit recording conversations so long as the consent of at least one of the parties has been previously obtained. Pennsylvania’s Wiretapping and Electronic Surveillance Control Act, (“Wiretap Act”) is more stringent and requires the consent of all parties to the conversation. A person who violates Pennsylvania’s Wiretap Act may be subject to criminal penalties, as well as civil liability.
Further, the Wiretap Act expressly waives any claim of sovereign immunity that may otherwise apply to public schools and their employees.
It is a common misconception that wiretap laws apply to all situations in which a conversation is recorded without consent.
However, the law uses the term “oral communication” which is defined to include only those oral communications “uttered by a person possessing an expectation that such communication is not subject to interception under circumstances justifying such an expectation.”
This means that for the provisions of Wiretap Act to be implicated, it is not enough to establish that a recording was made without the knowledge of a person, but that person must have had a reasonable expectation of privacy in that communication. Accordingly, whether Pennsylvania Wiretap laws are violated when such recordings are made in the school setting hinges on expectations of the parties involved and whether those expectations are objectively reasonable.
In the school setting, factors such as the following shall be considered: the location where the conversation is taking place, the presence of other individuals in the area, the volume of the speaker(s) (shouting/whispering/normal tones), the location of the recording device, whether the area was open to the public (i.e. was the classroom door open), and/or the specific nature of the subject of the conversation.
Further, while a District may report violations of Pennsylvania Wiretap Act to law enforcement, the decision to prosecute is ultimately left to the local district attorney, not the school.
Bottom Line for Schools
If your school is presented with an audio recording that appears to have been made without the consent of the parties being recorded, the content of the recording should not be ignored solely because school officials believe that it may violate applicable wiretapping laws.
The school may still be responsible for responding to the information contained on the recording. For example, if the audio recording indicates that a student may be the victim of bullying by other students, the school must thoroughly investigate those claims and cannot ignore the report merely because it believes that the audio recording may violate wiretap laws.
Since determining an appropriate response to an unauthorized audio recording requires a very fact specific analysis, if such a situation arises it is wise to immediately contact your school’s solicitor or an education attorney at KingSpry.
This School Law Bullet is a publication of the KingSpry Education Law Practice Group. John E. Freund is our editor. It is meant to be informational and does not constitute legal advice.