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Many school bus contractors are faced with the Pennsylvania wiretap law dilemma. That is, school districts contractually or informally require video and audio taping on school buses for the purpose of enhancing student safety and addressing student discipline issues. But, audio taping is prohibited by Pennsylvania statutes and case law. The current statutes even impose criminal and civil penalties for violators. School officials point to specific examples of local law enforcement’s refusal to prosecute violations. But the isolated opinions of local lawmakers do not carry the force of law and, in the end; the school bus contractor stands to bear the majority of the cost and heartache that can result from violations of the Pennsylvania Wiretap Law. This note will summarize the current law and the proposed changes. 

The Current Wiretap Law 

Pennsylvania’s Wiretapping and Electronic Surveillance Control Act prohibits the interception, disclosure or use of wire, electronic or oral communications. Specifically, the law states that: 

 “Except as otherwise provided in this chapter, a person is guilty of a felony of the third degree if he: (1) intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept any wire, electronic or oral communication; (2) intentionally discloses or endeavors to disclose to any other person the contents of any wire, electronic or oral communication, or evidence derived therefrom, knowing or having reason to know that the information was obtained through the interception of a wire, electronic or oral communication; or (3) intentionally uses or endeavors to use the contents of any wire, electronic or oral communication, or evidence derived therefrom, knowing or having reason to know, that the information was obtained through the interception of a wire, electronic or oral communication.

18 Pa.C.S. § 5703. The statute, commonly regarded as the most restrictive in the nation, devotes most of its text to law enforcement’s use of wiretaps and does not appear to have been intended to limit the use of audio tape on school buses. In fact, law enforcement officials have struggled with the issue. In 2006 Allegheny County District Attorney Stephen Zappala did not bring criminal charg-es when the Pennsylvania State Police found Laidlaw International using audio taping equipment on school buses. Following the incident Zappala did issue a “guidance letter”. However, the DA’s letter does not have the force of law and cannot prevent civil suits for damages arising from the statute. 

The law states that any person whose wire, electronic or oral communication is intercepted, disclosed or used in violation of the law shall have a civil cause of action against the violator allowing the victim to recover: 

“(1) Actual damages, but not less than liquidated damages computed at the rate of $ 100 a day for each day of violation, or $ 1,000, whichever is higher. (2) Punitive damages. (3) A reasonable attorney's fee and other litigation costs reasonably incurred.”

18 Pa.C.S. § 5725. This specific issue was litigated in the matter of Keppley v. Sch. Dist., 866 A.2d 1165 (Pa. Commw. Ct. 2005). In that case, a the school district required the installation of a "bus cam" electronic surveillance system on the school buses that transported students within the district pursuant to contracts with transportation companies. The bus cams enabled the cam to visually record activity on the buses and record oral communications. The school district did not notify the students that their activity and/or oral conversations were capable of being recorded. A student filed suit against the school district and the independent school bus contractors and sought to certify a class action to include 1,800 students. While the class certification was rejected, the underlying civil action for damages remained and the matter was ultimately settled for a significant sum based on the claim for actual damages, punitive damages, and attorney’s fees. Keppley v. Sch. Dist., 866 A.2d 1165 (Pa. Commw. Ct. 2005).

Additional Exceptions to the Wiretap Law are Needed

Currently, the law provides sixteen exceptions that generally apply to call centers for “quality control”, law enforcement, emergency responders, public utilities, and similar purposes. At this time there are no exceptions for school bus operators. But many school districts continue to press independent contractors to install and operate audio taping equipment on school buses. SB1117, PN 1376, sponsored by Senator Alloway, is proposed legislation introduced in 2011 that will amend the exceptions listed in 18 Pa.C.S. § 5704 to include a specific exception for school bus operators that will permit the use of audio taping on school buses under certain circumstances without fear of criminal or civil penalties. 

Specifically the proposed amendment to the statute states that: 

“It shall not be unlawful and no prior court approval shall be required under this chapter for:

* * *
(17) A person to intercept oral communications for disciplinary or security purposes on a school bus or school vehicle, as those terms are defined in 75 Pa.C.S. § 102 (relating to definitions), if all of the following conditions are met: 

  • The school board has adopted a policy that authorizes audio interception on school buses or school vehicles for disciplinary or security purposes. 
  • Each school year, the school board notifies students and their parents or guardians of the policy, by letter mailed to the students' home addresses.
  • The school board posts a notice that students maybe audiotaped, which notice is clearly visible on each schoolbus or school vehicle that is furnished with audio-recording equipment.
  • This paragraph shall not apply when a school bus or school vehicle is used for a purpose that is not school related.
The proposed amendment is simple and limited language that will permit the use of audio taping on a school bus for the purpose of enhancing student safety and addressing student discipline issues. The PSBA supports this proposed legislation as an important clarification of state law and recommends that all PSBA members urge their Senators to support the passage of SB1117.  

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