A02671
THE GENERAL ASSEMBLY OF PENNSYLVANIA
HOUSE BILL
No.
1278
Session of
2023
INTRODUCED BY PIELLI, BRIGGS, MADDEN, DELLOSO, SANCHEZ, SCOTT
AND GREEN, MAY 30, 2023
AS AMENDED ON SECOND CONSIDERATION, HOUSE OF REPRESENTATIVES,
SEPTEMBER 26, 2023
AN ACT
Amending Title 18 (Crimes and Offenses) of the Pennsylvania
Consolidated Statutes, in wiretapping and electronic
surveillance, further providing for definitions and for
exceptions to prohibition of interception and disclosure of
communications, providing for PUBLIC ACCESS AND FOR
Department of Corrections retention policy and further
providing for expiration of chapter.
The General Assembly of the Commonwealth of Pennsylvania
hereby enacts as follows:
Section 1. The definition of "oral communication" in section
5702 of Title 18 of the Pennsylvania Consolidated Statutes is
amended by adding paragraphs and the section is amended by
adding a definition DEFINITIONS to read:
§ 5702. Definitions.
As used in this chapter, the following words and phrases
shall have the meanings given to them in this section unless the
context clearly indicates otherwise:
"Agent." As defined in 61 Pa.C.S. § 6101 (relating to
definitions).
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"DEPARTMENT." THE DEPARTMENT OF CORRECTIONS OF THE
COMMONWEALTH.
"Oral communication." 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 the following:
* * *
(3) A communication made by a person subject to State
parole in the physical presence of an agent FROM OR TO AN
INDIVIDUAL SUBJECT TO STATE SUPERVISION OR PAROLE , as defined
in 61 Pa.C.S. § 6101 (relating to definitions), who meets all
of the following:
(i) Is clearly identifiable and on official duty.
(ii) Is using an electronic, mechanical or other
device that has been approved under section 5706(b)(4) to
intercept a wire, electronic or oral communication in the
course of official duties.
(iii) Has received training on the device.
(iv) Has provided prior written notice to a person
under the lawful supervision of State parole that the
agency AN AGENT , as defined in 61 Pa.C.S. § 6101, may
intercept communications with the person.
(v) Provides verbal notice at the time of the
recording that communicates with the agent that the
communication may be recorded, unless exigent
circumstances exist that would prevent verbal
notification.
(4) A communication made in the presence of an
individual employed in the Department of Corrections
DEPARTMENT Department of Corrections , Bureau of
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Investigations and Intelligence holding a police officer
commission under the act of May 21, 1943 (P.L.469, No.210),
entitled "An act providing for commissioning as police
officers certain employes of institutions maintained in whole
or in part by the Commonwealth; conferring upon them the
powers of constables in certain cases; and imposing duties on
wardens and keepers of jails, police stations and lock-ups,"
who meets all of the following:
(i) Is clearly identifiable and on official duty.
(ii) Is using an electronic, mechanical or other
device that has been approved under section 5706(b)(4) to
intercept a wire, electronic or oral communication in the
course of official duties.
(iii) Has received training on the device.
(iv) Is not intercepting a communication from inside
the residence of an employee of the Department of
Corrections DEPARTMENT Department of Corrections without
the consent of the employee or prior court approval.
* * *
"SECRETARY." THE SECRETARY OF CORRECTIONS OF THE
COMMONWEALTH.
Section 2. Section 5704 of Title 18 is amended by adding a
paragraph PARAGRAPHS a paragraph to read:
§ 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:
* * *
(19) The following:
(i) An agent to intercept an oral communication
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where:
(A) the communication is made by a person
subject to State parole or a third party in the
vicinity of an agent interacting with a person
subject to State parole; or
(B) the communication is made by another agent,
investigative or law enforcement officer present
during the agent's interaction with a person subject
to State parole.
(ii) No interception made under this paragraph shall
be disclosed to an investigative or law enforcement
officer unless disclosed pursuant to a lawful warrant.
(19) AN AGENT TO INTERCEPT, RECORD, MONITOR OR DIVULGE
ANY ORAL COMMUNICATION IF THE FOLLOWING CONDITIONS ARE MET:
(I) THE DEPARTMENT SHALL ADHERE TO THE FOLLOWING
PROCEDURES AND RESTRICTIONS WHEN INTERCEPTING, RECORDING,
MONITORING OR DIVULGING ANY ORAL COMMUNICATION:
(A) THE INDIVIDUAL SUBJECT TO STATE SUPERVISION
OR PAROLE SHALL BE NOTIFIED IN WRITING THAT AS OF THE
EFFECTIVE DATE OF THIS PARAGRAPH THE PERSON'S ORAL
COMMUNICATIONS MAY BE INTERCEPTED, RECORDED,
MONITORED OR DIVULGED.
(B) UNLESS OTHERWISE PROVIDED IN THIS PARAGRAPH,
AFTER INTERCEPTING OR RECORDING AN ORAL
COMMUNICATION, ONLY THE SECRETARY, AN AGENT, OTHER
ADMINISTRATIVE OFFICIALS OF THE DEPARTMENT DESIGNATED
BY THE SECRETARY AND EMPLOYEES OF THE PENNSYLVANIA
PAROLE BOARD SHALL HAVE ACCESS TO THE RECORDING OR
INTERCEPTION.
(C) THE CONTENTS OF AN INTERCEPTED AND RECORDED
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ORAL COMMUNICATION SHALL BE DIVULGED ONLY AS
NECESSARY TO SAFEGUARD THE ORDERLY OPERATION OF STATE
SUPERVISION, PAROLE HEARING PURPOSES, IN RESPONSE TO
A COURT ORDER OR IN THE PROSECUTION OR INVESTIGATION
OF A CRIME.
(II) THIS PARAGRAPH SHALL APPLY TO THE FOLLOWING:
(A) ORAL COMMUNICATION MADE FROM OR TO AN
INDIVIDUAL SUBJECT TO STATE SUPERVISION OR PAROLE OR
A THIRD PARTY WHILE IN THE VICINITY OF AN AGENT
INTERACTING WITH AN INDIVIDUAL ON STATE SUPERVISION
OR PAROLE.
(B) ORAL COMMUNICATION MADE BY AN AGENT,
INVESTIGATIVE OR LAW ENFORCEMENT OFFICER PRESENT
DURING THE AGENT'S INTERACTION WITH A PERSON SUBJECT
TO STATE SUPERVISION OR PAROLE.
(III) NO INTERCEPTION OR RECORDING OF AN ORAL
COMMUNICATION MADE UNDER THIS PARAGRAPH SHALL BE SHARED
WITH AN INVESTIGATIVE OR LAW ENFORCEMENT OFFICER UNLESS
PURSUANT TO A LAWFUL WARRANT.
(IV) THE DEPARTMENT SHALL DEVELOP GUIDELINES TO
IMPLEMENT THIS PARAGRAPH FOR STATE SUPERVISION.
(20) (19) A PERSON TO INTERCEPT THE WIRE COMMUNICATIONS
OF A TELEMARKETER, TELEMARKETING BUSINESS OR AN INDIVIDUAL OR
ENTITY THAT INITIATES ROBOCALLS, AS THOSE TERMS ARE DEFINED
IN SECTION 2 OF THE ACT OF DECEMBER 4, 1996 (P.L.911,
NO.147), KNOWN AS THE TELEMARKETER REGISTRATION ACT, PROVIDED
THAT THE PERSON WHO RECEIVED THE TELEPHONE CALL HAS CONSENTED
TO THE INTERCEPTION, FOR PURPOSES OF ENFORCING ANY OF THE
FOLLOWING:
(I) 47 U.S.C. § 227 (RELATING TO RESTRICTIONS ON USE
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OF TELEPHONE EQUIPMENT).
(II) THE ACT OF DECEMBER 17, 1968 (P.L.1224,
NO.387), KNOWN AS THE UNFAIR TRADE PRACTICES AND CONSUMER
PROTECTION LAW.
(III) THE TELEMARKETER REGISTRATION ACT.
SECTION 3. SUBCHAPTER B OF CHAPTER 57 OF TITLE 18 IS AMENDED
BY ADDING A SECTION TO READ:
§ 5729. PUBLIC ACCESS.
A REQUEST FOR ACCESS TO AUDIO AND VIDEO RECORDINGS MADE BY AN
AGENT , as defined in 61 Pa.C.S. § 6101 (relating to
definitions), UNDER THIS CHAPTER SHALL NOT BE SUBJECT TO THE ACT
OF FEBRUARY 14, 2008 (P.L.6, NO.3), KNOWN AS THE RIGHT-TO-KNOW
LAW, AND SHALL FOLLOW THE ACCESS PROCEDURES PROVIDED FOR UNDER
42 PA.C.S. CH. 67A (RELATING TO RECORDINGS BY LAW ENFORCEMENT
OFFICERS).
Section 3 4. Subchapter C of Chapter 57 of Title 18 is
amended by adding a section to read:
§ 5750. Department of Corrections retention policy.
The Secretary of Corrections SECRETARY Secretary of
Corrections shall develop a record retention policy for all
communications lawfully intercepted by Department of
Corrections DEPARTMENT employees of the Department of
Corrections . By January 1, 2024, the Secretary of Corrections
SECRETARY Secretary of Corrections shall issue a notice of the
record retention policy developed under this section. The notice
shall be published on the Department of Correction's
DEPARTMENT'S Department of Corrections ' publicly accessible
Internet website and transmitted to the Legislative Reference
Bureau for publication in the next available issue of the
Pennsylvania Bulletin.
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Section 4 5. Section 5781 of Title 18 is amended to read:
§ 5781. Expiration of chapter.
This chapter expires December 31, [2023] 2029, unless
extended by statute.
Section 5 6. Nothing in this act shall be construed to waive
or otherwise reduce the rights guaranteed under the Constitution
of the United States or the Constitution of Pennsylvania of a
nonconsenting third party who is present in the approved home of
an individual who is under supervision of an agent and whose
communications are lawfully intercepted by an agency of the
Department of Corrections under paragraph (3) of the definition
of "oral communication" in 18 Pa.C.S. § 5702.
Section 6 7 6. This act shall take effect as follows:
(1) The amendment of the definition of "oral
communication" in 18 Pa.C.S. § 5702 shall take effect in 60
days.
(1) THE FOLLOWING SHALL TAKE EFFECT IN 60 DAYS:
(I) THE AMENDMENT OF THE DEFINITION OF "ORAL
COMMUNICATION" IN 18 PA.C.S. § 5702.
(II) THE ADDITION OF 18 PA.C.S. § 5704(20) 5704(19).
(2) The remainder of this act shall take effect
immediately.
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