Regular Session 2023-2024 House Bill 1278 P.N. 2037

PRIOR PRINTER'S NOS. 1382, 1764

PRINTER'S NO. 2037

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 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 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 , Bureau of Investigations and Intelligence holding

a police officer commission under the act of May 21, 1943

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(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 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 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

where:

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(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.

ORAL COMMUNICATION SHALL BE DIVULGED ONLY AS

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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) 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

OF TELEPHONE EQUIPMENT).

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(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 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 shall develop a record

retention policy for all communications lawfully intercepted by

Department of Corrections DEPARTMENT employees. By January 1,

2024, the Secretary of Corrections SECRETARY 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 publicly accessible Internet website

and transmitted to the Legislative Reference Bureau for

publication in the next available issue of the Pennsylvania

Bulletin.

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.

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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. 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).

(2) The remainder of this act shall take effect

immediately.

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