Regular Session 2023-2024 House Bill 1278 P.N. 1764

PRIOR PRINTER'S NO. 1382

PRINTER'S NO. 1764

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 REPORTED FROM COMMITTEE ON JUDICIARY, HOUSE OF

REPRESENTATIVES, AS AMENDED, JUNE 28, 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 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 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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"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:

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(3) A communication made BY A PERSON SUBJECT TO STATE

PAROLE in the PHYSICAL presence of an agent , 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 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, Bureau

of 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

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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.

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(IV) IS NOT INTERCEPTING A COMMUNICATION FROM INSIDE

THE RESIDENCE OF AN EMPLOYEE OF THE DEPARTMENT OF

CORRECTIONS WITHOUT THE CONSENT OF THE EMPLOYEE OR PRIOR

COURT APPROVAL.

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SECTION 2. SECTION 5704 OF TITLE 18 IS AMENDED BY ADDING 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:

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(19) THE FOLLOWING:

(I) AN AGENT TO INTERCEPT AN ORAL COMMUNICATION

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,

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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.

SECTION 3. 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 SHALL DEVELOP A RECORD RETENTION

POLICY FOR ALL COMMUNICATIONS LAWFULLY INTERCEPTED BY

DEPARTMENT OF CORRECTIONS EMPLOYEES. BY JANUARY 1, 2024, THE

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 PUBLICLY

ACCESSIBLE INTERNET WEBSITE AND TRANSMITTED TO THE LEGISLATIVE

REFERENCE BUREAU FOR PUBLICATION IN THE NEXT AVAILABLE ISSUE OF

THE PENNSYLVANIA BULLETIN.

Section 2 4. 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. 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.

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Section 3 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.

(2) The remainder of this act shall take effect

immediately.

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