Wednesday, June 4, 2014

Pennsylvania Boy Who Was Charged with Wiretapping by Recording His Bullies Was Wrongfully Charged

Judge that found bullied boy guilty and fined him simply didn't know the law

by Larry Simons
June 4, 2014

Back in February, a 15-year-old Pennsylvania boy who had been bullied by several classmates for several months finally decided to do something about it, since the school, South Fayette High School, near Pittsburgh, was doing nothing about it. The boy took his iPad into school and recorded the bullies. Instead of school officials listening to the recording and punishing the bullies, they called the police and had him charged with illegal wiretapping.

The boy, Christian Stanfield, was charged with disorderly conduct for recording the bullies in the classroom. He also served a Saturday detention and was required to stand before a judge to face charges. District Judge Maureen McGraw-Desmet found him guilty and slapped him with a fine.

In mid-April the charges were dropped because the cop who wrote the citation simply changed his mind to not charge the boy for felony wiretapping, but he said he still felt the disorderly conduct charge was necessary. Another Judge signed an order to withdraw the citation. A spokesman said the citation was dropped because no one who is authorized to give advice on wiretap issues was ever contacted in their office and they could not contact the cop who issued the citation after multiple attempts.

This story, when it first broke, drew strong criticism and outrage from the community [and rightly so] because the victim was being charged with a felony and the attackers were not punished at all. Now the charges have been dropped and everything is back to normal and it's business as usual.

One has to wonder, why were wiretapping charges ever brought against Stanfield in this case? It appears no one bothered to read the actual Pennsylvania statute concerning interception, disclosure or use of wire, electronic or oral communications.

The statute, 18 Pa. Cons. Stat. § 5703 states that it is a crime to intercept or record a telephone call or conversation unless all parties to the conversation consent.

It states that a person IS guilty of a felony in the third degree if:
(1) intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept any wire, electronic or oral communication;
(2) intentionally discloses or endeavors 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; or 
(3) intentionally uses or endeavors to use 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.
Each item in this provision ends with the words "wire, electronic or oral communication". In Stanfield's case, he recorded live oral communication, so "wire" and "electronic" do not apply. The statute 18 Pa.C.S.A. § 5702 (Definitions) defines "oral communications" as such:

“Any oral communication uttered by a person possessing an expectation that such communication is not subject to interception under circumstances justifying such expectation. The term does not include any electronic communication"

In other words, this law does not apply when the one speaking [and being recorded] does not have the expectation that what he or she is saying will or should be recorded. Examples of this would include private conversations in private settings, or any place where you would not expect to be recorded speaking.

When Stanfield recorded the bullies ridiculing him, it was in an open, public setting, and it was heard by the teacher and rest of his classmates. Therefore, this incident would not qualify as private, nor would it be an example in which the speaker would not expect to be recorded, since it was in a public setting [classroom] and it was heard by at least 15 other students.

Even the website Digital Media Law Project, which offers legal assistance, says this about the PA wiretapping law:

"Therefore, you may be able to record in-person conversations occurring in a public place without consent. However, you should always get the consent of all parties before recording any conversation that common sense tells you is private". Notice the emphasis on privacy.

There is no better example of a place in which the speaker should expect to have his voice recorded than in an open, public setting [such as a school, where nearly every teenager these days possesses a cell phone] where he or she is spewing obscenities and insults at others. This Pennsylvania wiretapping statute only applies in cases where the speaker [the one being recorded] does not expect to be recorded because it is private speech [and therefore both parties must consent]. Stanfield's bullies were not speaking in a private setting, nor should they not have expected to be recorded.

Stanfield was falsely charged, period. The police, nor the Judges in this entire ordeal knew the law. If I were Stanfield, I would file a lawsuit against the police department and the Judge whose responsibility it was to know the wiretapping laws, but did not.

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