In March 2006, the State Police, contending that recording audio could violate the Pennsylvania Wiretapping and Electronic Surveillance Control Act, 18 Pa.C.S. § 5701 et seq., executed a search warrant and confiscated surveillance cameras belonging to a local transit company servicing school districts. The Wiretap Act prohibits electronically intercepting someone’s verbal statements if the person making the statements does not consent to the interception and makes the statements in such a place or manner as to reasonably expect that the statements are made in private.
Prior to this incident, it was presumed by some transportation companies that recording audio on a school bus would not violate the Wiretap Act for two reasons. First, signs are posted notifying passengers that video and audio recording is taking place. Second, passengers have no expectation of privacy in that setting, and thus the communication is not protected.
The State Police considered filing felony charges against the transit company based on the absence of proper notice. Allegheny County District Attorney Steven Zappala intervened and indicated that he would not file Wiretap Act charges against the transit company. District Attorney Zappala issued a letter in which he defined situations in which he will not consider audio surveillance on a school bus to violate the Wiretap Act. In brief, the D.A.’s position is that statements made on a public school bus do not constitute “oral communication” within the meaning of the Act because there is little or no expectation of privacy with such statements. Mr. Zappala further indicated that there was no intent to violate the Wiretap Act on the part of the School Districts, and declined to prosecute them on that basis.
The following guidelines were contained in Mr. Zappala’s letter:
First, a school board should adopt or revise a policy to clarify (1) that the Board has authorized the recording of audio on school buses, (2) that students and parents shall be informed annually by letter of the District’s policy and (3) that any audio recordings from school buses may be used in student discipline proceedings.
Second, districts who record audio must annually send a letter home to parents informing them of this practice and the Board’s policy. For consistency, the District should also include a similar statement in Student Handbooks and Codes of Conduct. To be compliant with Mr. Zappala’s guidelines, the District should send an individual letter at the beginning of each school year, which should also include a copy of the new or revised Board policy.
Finally, a School District which continues the audio recording should require and confirm that its transportation employees or contractor have installed a conspicuous sign on every bus which announces that audio and video surveillance is in effect. School districts should insist that drivers and contractors routinely check that all buses are equipped with the signs and that they remain readable and are not defaced. The signs must communicate, in clear and simple language, and the posting location must be the most noticeable to all passengers on the school bus.
It is important to note that counties other than Allegheny County may disagree with Mr. Zappala’s position on this matter. As such, you must consult your local D.A.’s office for guidance. Regardless of Mr. Zappala’s position, there is also the possibility that a Court will find that recording of audio on school buses is a violation of the Wiretap Act. This issue could also be addressed by the Legislature. Until the question is answered definitively, the only certain course with no risk is to discontinue the recording of audio until the Courts or legislature act.
We will continue to monitor this issue and provide further updates as necessary.