One of the most common questions that seems to arise in the realm of constitutional rights involves whether an individual has the right to record encounters with police officers. The short answer is: Yes.
Pennsylvania’s Wiretap Act makes it a third degree felony to “intentionally intercept . . . any . . . oral communication.” 18 Pa.C.S.A. s. 5703(1). However, an “oral communication” is defined as “any oral communication uttered by a person possessing an expectation that such communication is not subject to interception under circumstances justifying such expectation.” 18 Pa.C.SA. s. 5702. Thus, if an individual has no expectation that his statements will not be “subject to interception,” then the statement is not an “oral communication” for purposes of the Wiretap Act.
Two federal courts governing Pennsylvania have concluded that police officers do not have an expectation that their statements will not be intercepted. First, in Robinson v. Fetterman, the Eastern District of Pennsylvania found that the First Amendment guarantees the rights of individuals to record police officers in the course of their public duties. 378 F.Supp.2d 534, 541 (E.D.Pa. 2005). In so holding, the Court noted that the “activities of the police, like those of other public officials, are subject to public scrutiny.” Id. While some courts have held that the First Amendment right exists for expressive purposes, the Eastern District found that the plaintiff “need not assert any particular reason for videotaping the troopers.” Id.
Five years later, in Kelly v. Borough of Carlisle, the federal Third Circuit (the appeals court that governs Pennsylvania), found that there was, indeed, a First Amendment right to record the police during their official duties. 622 F.3d 248 (3d Cir. 2010). The Third Circuit opinion revolved primarily around the issue of qualified immunity (which would immunize the police officers from liability if the law was not clearly established at the time of the violation). Thus, the holding is not quite as explicit as the Eastern District’s in Robinson, but is present nonetheless.
In short, you may record the activities of the police, so long as your recording does not interfere with their official duties. For example, you can’t cross into a marked crime scene, or resist arrest for the purpose of continuing the recording, but you can record from a distance that is not going to interfere.