2010 Pennsylvania Code
Title 18 - CRIMES AND OFFENSES
Chapter 57 - Wiretapping and Electronic Surveillance
5704 - Exceptions to prohibition of interception and disclosure of communications.

     § 5704.  Exceptions to prohibition of interception and
                disclosure of communications.
        It shall not be unlawful and no prior court approval shall be
     required under this chapter for:
            (1)  An operator of a switchboard, or an officer, agent
        or employee of a provider of wire or electronic communication
        service, whose facilities are used in the transmission of a
        wire communication, to intercept, disclose or use that
        communication in the normal course of his employment while
        engaged in any activity which is a necessary incident to the
        rendition of his service or to the protection of the rights
        or property of the provider of wire or electronic
        communication service. However, no provider of wire or
        electronic communication service shall utilize service
        observing or random monitoring except for mechanical or
        service quality control checks.
            (2)  Any investigative or law enforcement officer or any
        person acting at the direction or request of an investigative
        or law enforcement officer to intercept a wire, electronic or
        oral communication involving suspected criminal activities,
        including, but not limited to, the crimes enumerated in
        section 5708 (relating to order authorizing interception of
        wire, electronic or oral communications), where:
                (i)  (Deleted by amendment).
                (ii)  one of the parties to the communication has
            given prior consent to such interception. However, no
            interception under this paragraph shall be made unless
            the Attorney General or a deputy attorney general
            designated in writing by the Attorney General, or the
            district attorney, or an assistant district attorney
            designated in writing by the district attorney, of the
            county wherein the interception is to be made, has
            reviewed the facts and is satisfied that the consent is
            voluntary and has given prior approval for the
            interception; however, such interception shall be subject
            to the recording and record keeping requirements of
            section 5714(a) (relating to recording of intercepted
            communications) and that the Attorney General, deputy
            attorney general, district attorney or assistant district
            attorney authorizing the interception shall be the
            custodian of recorded evidence obtained therefrom;
                (iii)  the investigative or law enforcement officer
            meets in person with a suspected felon and wears a
            concealed electronic or mechanical device capable of
            intercepting or recording oral communications. However,
            no interception under this subparagraph may be used in
            any criminal prosecution except for a prosecution
            involving harm done to the investigative or law
            enforcement officer. This subparagraph shall not be
            construed to limit the interception and disclosure
            authority provided for in this subchapter; or
                (iv)  the requirements of this subparagraph are met.
            If an oral interception otherwise authorized under this
            paragraph will take place in the home of a nonconsenting
            party, then, in addition to the requirements of
            subparagraph (ii), the interception shall not be
            conducted until an order is first obtained from the
            president judge, or his designee who shall also be a
            judge, of a court of common pleas, authorizing such in-
            home interception, based upon an affidavit by an
            investigative or law enforcement officer that establishes
            probable cause for the issuance of such an order. No such
            order or affidavit shall be required where probable cause
            and exigent circumstances exist. For the purposes of this
            paragraph, an oral interception shall be deemed to take
            place in the home of a nonconsenting party only if both
            the consenting and nonconsenting parties are physically
            present in the home at the time of the interception.
            (3)  Police and emergency communications systems to
        record telephone communications coming into and going out of
        the communications system of the Pennsylvania Emergency
        Management Agency or a police department, fire department or
        county emergency center, if:
                (i)  the telephones thereof are limited to the
            exclusive use of the communication system for
            administrative purposes and provided the communication
            system employs a periodic warning which indicates to the
            parties to the conversation that the call is being
            recorded;
                (ii)  all recordings made pursuant to this clause,
            all notes made therefrom, and all transcriptions thereof
            may be destroyed at any time, unless required with regard
            to a pending matter; and
                (iii)  at least one nonrecorded telephone line is
            made available for public use at the Pennsylvania
            Emergency Management Agency and at each police
            department, fire department or county emergency center.
            (4)  A person, to intercept a wire, electronic or oral
        communication, where all parties to the communication have
        given prior consent to such interception.
            (5)  Any investigative or law enforcement officer, or
        communication common carrier acting at the direction of an
        investigative or law enforcement officer or in the normal
        course of its business, to use a pen register, trap and trace
        device or telecommunication identification interception
        device as provided in Subchapter E (relating to pen
        registers, trap and trace devices and telecommunication
        identification interception devices).
            (6)  Personnel of any public utility to record telephone
        conversations with utility customers or the general public
        relating to receiving and dispatching of emergency and
        service calls provided there is, during such recording, a
        periodic warning which indicates to the parties to the
        conversation that the call is being recorded.
            (7)  A user, or any officer, employee or agent of such
        user, to record telephone communications between himself and
        a contractor or designer, or any officer, employee or agent
        of such contractor or designer, pertaining to excavation or
        demolition work or other related matters, if the user or its
        agent indicates to the parties to the conversation that the
        call will be or is being recorded. As used in this paragraph,
        the terms "user," "contractor," "demolition work," "designer"
        and "excavation work" shall have the meanings given to them
        in the act of December 10, 1974 (P.L.852, No.287), referred
        to as the Underground Utility Line Protection Law; and a one
        call system shall be considered for this purpose to be an
        agent of any user which is a member thereof.
            (8)  A provider of electronic communication service to
        record the fact that a wire or electronic communication was
        initiated or completed in order to protect the provider,
        another provider furnishing service toward the completion of
        the wire or electronic communication, or a user of that
        service, from fraudulent, unlawful or abusive use of the
        service.
            (9)  A person or entity providing electronic
        communication service to the public to divulge the contents
        of any such communication:
                (i)  as otherwise authorized in this section or
            section 5717 (relating to investigative disclosure or use
            of contents of wire, electronic or oral communications or
            derivative evidence);
                (ii)  with the lawful consent of the originator or
            any addressee or intended recipient of the communication;
                (iii)  to a person employed or authorized, or whose
            facilities are used, to forward the communication to its
            destination; or
                (iv)  which were inadvertently obtained by the
            service provider and which appear to pertain to the
            commission of a crime, if such divulgence is made to a
            law enforcement agency.
        A person or entity providing electronic communication service
        to the public shall not intentionally divulge the contents of
        any communication (other than one directed to the person or
        entity, or an agent thereof) while in transmission of that
        service to any person or entity other than an addressee or
        intended recipient of the communication or an agent of the
        addressee or intended recipient.
            (10)  Any person:
                (i)  to intercept or access an electronic
            communication made through an electronic communication
            system configured so that the electronic communication is
            readily accessible to the general public;
                (ii)  to intercept any radio communication which is
            transmitted:
                    (A)  by a station for the use of the general
                public, or which relates to ships, aircraft, vehicles
                or persons in distress;
                    (B)  by any governmental, law enforcement, civil
                defense, private land mobile or public safety
                communication system, including police and fire
                systems, readily accessible to the general public;
                    (C)  by a station operating on an authorized
                frequency within the bands allocated to the amateur,
                citizens band or general mobile radio services; or
                    (D)  by any marine or aeronautical communication
                system;
                (iii)  to engage in any conduct which:
                    (A)  is prohibited by section 633 of the
                Communications Act of 1934 (48 Stat. 1105, 47 U.S.C.
                § 553); or
                    (B)  is excepted from the application of section
                705(a) of the Communications Act of 1934 (47 U.S.C. §
                605(a)) by section 705(b) of that act (47 U.S.C. §
                605(b)); or
                (iv)  to intercept any wire or electronic
            communication the transmission of which is causing
            harmful interference to any lawfully operating station,
            to the extent necessary to identify the source of the
            interference.
            (11)  Other users of the same frequency to intercept any
        radio communication made through a system which utilizes
        frequencies monitored by individuals engaged in the
        provisions or use of the system, if the communication is not
        scrambled or encrypted.
            (12)  Any investigative or law enforcement officer or any
        person acting at the direction or request of an investigative
        or law enforcement officer to intercept a wire or oral
        communication involving suspected criminal activities where
        the officer or the person is a party to the communication and
        there is reasonable cause to believe that:
                (i)  the other party to the communication is either:
                    (A)  holding a hostage; or
                    (B)  has barricaded himself and taken a position
                of confinement to avoid apprehension; and
                (ii)  that party:
                    (A)  will resist with the use of weapons; or
                    (B)  is threatening suicide or harm to others.
            (13)  An investigative officer, a law enforcement officer
        or employees of the Department of Corrections for State
        correctional facilities to intercept, record, monitor or
        divulge any telephone calls from or to an inmate in a
        facility under the following conditions:
                (i)  The Department of Corrections shall adhere to
            the following procedures and restrictions when
            intercepting, recording, monitoring or divulging any
            telephone calls from or to an inmate in a State
            correctional facility as provided for by this paragraph:
                    (A)  Before the implementation of this paragraph,
                all inmates of the facility shall be notified in
                writing that, as of the effective date of this
                paragraph, their telephone conversations may be
                intercepted, recorded, monitored or divulged.
                    (B)  Unless otherwise provided for in this
                paragraph, after intercepting or recording a
                telephone conversation, only the superintendent,
                warden or a designee of the superintendent or warden
                or other chief administrative official or his or her
                designee shall have access to that recording.
                    (C)  The contents of an intercepted and recorded
                telephone conversation shall be divulged only as is
                necessary to safeguard the orderly operation of the
                facility, in response to a court order or in the
                prosecution or investigation of any crime.
                (ii)  So as to safeguard the attorney-client
            privilege, the Department of Corrections shall not
            intercept, record, monitor or divulge any conversation
            between an inmate and an attorney.
                (iii)  Persons who are calling in to a facility to
            speak to an inmate shall be notified that the call may be
            recorded or monitored.
                (iv)  The Department of Corrections shall promulgate
            guidelines to implement the provisions of this paragraph
            for State correctional facilities.
            (14)  An investigative officer, a law enforcement officer
        or employees of a county correctional facility to intercept,
        record, monitor or divulge any telephone calls from or to an
        inmate in a facility under the following conditions:
                (i)  The county correctional facility shall adhere to
            the following procedures and restrictions when
            intercepting, recording, monitoring or divulging any
            telephone calls from or to an inmate in a county
            correctional facility as provided for by this paragraph:
                    (A)  Before the implementation of this paragraph,
                all inmates of the facility shall be notified in
                writing that, as of the effective date of this
                paragraph, their telephone conversations may be
                intercepted, recorded, monitored or divulged.
                    (B)  Unless otherwise provided for in this
                paragraph, after intercepting or recording a
                telephone conversation, only the superintendent,
                warden or a designee of the superintendent or warden
                or other chief administrative official or his or her
                designee shall have access to that recording.
                    (C)  The contents of an intercepted and recorded
                telephone conversation shall be divulged only as is
                necessary to safeguard the orderly operation of the
                facility, in response to a court order or in the
                prosecution or investigation of any crime.
                (ii)  So as to safeguard the attorney-client
            privilege, the county correctional facility shall not
            intercept, record, monitor or divulge any conversation
            between an inmate and an attorney.
                (iii)  Persons who are calling into a facility to
            speak to an inmate shall be notified that the call may be
            recorded or monitored.
                (iv)  The superintendent, warden or a designee of the
            superintendent or warden or other chief administrative
            official of the county correctional system shall
            promulgate guidelines to implement the provisions of this
            paragraph for county correctional facilities.
            (15)  The personnel of a business engaged in telephone
        marketing or telephone customer service by means of wire,
        oral or electronic communication to intercept such marketing
        or customer service communications where such interception is
        made for the sole purpose of training, quality control or
        monitoring by the business, provided that one party involved
        in the communications has consented to such intercept. Any
        communications recorded pursuant to this paragraph may only
        be used by the business for the purpose of training or
        quality control. Unless otherwise required by Federal or
        State law, communications recorded pursuant to this paragraph
        shall be destroyed within one year from the date of
        recording.
            (16)  A law enforcement officer, whether or not certified
        under section 5724 (relating to training), acting in the
        performance of his official duties to intercept and record an
        oral communication between individuals in accordance with the
        following:
                (i)  At the time of the interception, the oral
            communication does not occur inside the residence of any
            of the individuals.
                (ii)  At the time of the interception, the law
            enforcement officer:
                    (A)  is operating the visual or audible warning
                system of the law enforcement officer's vehicle
                authorized by 75 Pa.C.S. § 4571 (relating to visual
                and audible signals on emergency vehicles) or is
                clearly identifiable as a law enforcement officer;
                    (B)  is in close proximity to the individuals'
                oral communication;
                    (C)  is using an electronic, mechanical or other
                device which has been approved under section
                5706(b)(4) (relating to exceptions to prohibitions in
                possession, sale, distribution, manufacture or
                advertisement of electronic, mechanical or other
                devices) to intercept the oral communication, the
                recorder of which is mounted in the law enforcement
                officer's vehicle; and
                    (D)  informs, as soon as reasonably practicable,
                the individuals identifiably present that he has
                intercepted and recorded the oral communication.
                (iii)  As used in this paragraph, the following words
            and phrases shall have the meanings given to them in this
            subparagraph:
                "Law enforcement officer."  A member of the
            Pennsylvania State Police or an individual employed as a
            police officer who holds a current certificate under 53
            Pa.C.S. Ch. 21 Subch. D (relating to municipal police
            education and training).
                "Recorder."  An electronic, mechanical or other
            device used to store an oral communication on tape or on
            some other comparable medium.
     (July 10, 1981, P.L.227, No.72, eff. 60 days; Dec. 23, 1981,
     P.L.593, No.175, eff. 60 days; Oct. 21, 1988, P.L.1000, No.115,
     eff. imd.; Sept. 26, 1995, 1st Sp.Sess., P.L.1056, No.20, eff.
     60 days; Dec. 19, 1996, P.L.1458, No.186, eff. 60 days; Feb. 18,
     1998, P.L.102, No.19, eff. imd.; June 11, 2002, P.L.367, No.52,
     eff. imd.)

        2002 Amendment.  Act 52 added par. (16).
        1998 Amendment.  Act 19 amended the intro. par. and pars.
     (2), (5) and (9) and added par. (15).
        1996 Amendment.  Act 186 amended par. (2) and added par.
     (14).
        1995 Amendment.  Act 20, 1st Sp.Sess., added par. (13).
        Cross References.  Section 5704 is referred to in sections
     5702, 5706, 5720, 5721.1, 5742, 5747, 5749, 5782 of this title.