By Steven Nelson at US News
Pennsylvania high school student Christian Stanfield was convicted March 19 of disorderly conduct for making an audio recording of bullies taunting him at his Pittsburgh-area school. The case attracted nationwide coverage and the local district attorney’s office informed Stanfield Wednesday it agrees with his appeal and will move to drop the charge.
Some free speech advocates say the furor should spur state legislators to reform Pennsylvania’s anti-wiretapping statute.
In most states it’s legal to record conversations with only one participant’s consent. However, in a handful of states – including Pennsylvania – a person is guilty of a crime if they record a conversation without all participants’ consent when there’s an expectation of privacy.
In February Stanfield, a 15-year-old with learning disabilities, played a recording he made with an iPad to his mother. She said it documented classroom taunts and a threat to pull down her son’s pants, and contacted administrators at South Fayette High School to inform them of the incident.
Administrators summoned Stanfield to the principal’s office, forced him to delete the recording, gave him a Saturday detention and called police.
South Fayette police Lt. Robert Kurta, who did not hear the recording, charged Stanfield with disorderly conduct, reportedly because he felt a felony wiretapping charge would be too harsh. University of California at Los Angeles law professor Eugene Volokh writes that the disorderly conduct verdict appeared premised on District Judge Maureen McGraw-Desmet agreeing with Kurta that the recording violated the wiretapping law.
“What it really goes to show is that our laws are having trouble keeping up with technology,” says Robert Richards, founding director of the Pennsylvania Center for the First Amendment and a journalism professor at the Pennsylvania State University.
“Perhaps what is needed is an incident like this” to prompt reform, Richards says. “This has been the law in Pennsylvania for quite a while [and] in our state it’s mostly due to inertia – we have had this law on the books for a long time and Pennsylvania has a really hard time changing anything that’s been in place for so long.”
Robert Shibley, senior vice president of the Philadelphia-based Foundation for Individual Rights in Education, a national group that primarily focuses on college free speech issues, also favors reform.
“With the explosion of iPhones, iPads, devices, smartphones that can record things, students are in a position where it’s logical for them to say, ‘Hey, something bad is going on and I’m going to try to tape it,’” Shibley says. “Many times when those [wiretap] statutes were passed the idea was someone was going to be wearing a wire and going into a situation where people have a reasonable expectation of privacy, [but] it’s increasingly far-fetched to make the case that students have a reasonable expectation that nobody’s going to be taking photographs or recording in some way.”
Shibley says “a classroom is becoming a fairly public place these days – students are on Snapchat and Instagram and taking photos of all sorts of things, and probably videos and recordings. As opposed to criminalizing all that behavior in a way that acts as a trap for students, we need to take another look and say, ‘Is this really what we intend to do?’” he says. “If so, we need to be informing students they could be violating the law by doing this.”
He doubts many students have considered their everyday conduct could yield felony charges.
“A wiretapping statute is not something like a speed limit or an anti-drug law that people would have reason to know about – most of us don’t consider ourselves to be engaged in the business of wiretapping where we would need to know things like that, and certainly not teenagers,” he says. “If it’s starting to vacuum in a lot of conduct that people would see as normal these days, that’s a good reason to take another look at the statute.”
Richards says the current statute is particularly problematic for reporters seeking to expose crooked officials and other bad actors with surreptitious recordings.
“There’s always the concern that it’s corrupt officials who are the going to be the ones most likely to be recorded doing something bad and they’re the ones who want the two-party recording statutes,” agrees Shibley. “I don’t know to what extent that’s actually been the case, but it certainly isn’t a crazy motivation for a statute like that.”
The impulse to reform the law isn’t universal among civil libertarians.
Andy Hoover, legislative director of the American Civil Liberties Union of Pennsylvania, says the organization opposes moving the state toward a one-party consent standard.
“We’ve had two-party consent for a long time and the ACLU of Pennsylvania has consistently been the key defender of that two-party consent with a lot of allies in the legislature,” Hoover says. “The problem with expanding the use of recording is that you end up with unintended consequences. There will be situations where there’s a legitimate need for privacy in which a person’s privacy will be exposed and their personal situations will be exposed and cause harm to them.”
Hoover says “it’s highly questionable” that Stanfield actually violated the wiretap statute because the taunts could be overheard by a room full of classmates, meaning the alleged bullies might not have had an expectation of privacy.
“Either way, whether there was an expectation of privacy or not the prosecution of this child served no other than retaliation against the victim,” he says.
Hoover says there’s not a major debate among the state ACLU’s members about the law.
“Recording is often seen as a panacea to addressing bad behavior and there are many ways to address bad behavior beyond turning every student or teacher into a spy,” he says.
The Pittsburgh Post-Gazette reported Thursday the Allegheny County, Pa., district attorney’s office will seek to drop the disorderly conduct charge at an April 29 appeals hearing in the Allegheny County Court of Common Pleas.
“The behavior does not rise to the level of a citation,” Mike Manko, a spokesman for the district attorney’s office, told the Post-Gazette. “No one who is authorized to give advice on wiretap or school violation issues was contacted in our office by the school district or South Fayette police. Multiple attempts to contact the officer who wrote the citation have been made. We have not heard from him.”