Internet fame is a hot commodity these days, and people always have a camera phone poised to catch unsuspecting subjects in shocking acts of notoriety. No one is safe: shoppers, colleagues, and even athletic coaches can yield thousands of views on YouTube. College athletics coaches are used to being filmed yelling plays at their student-athletes at games, but thanks to the prevalence of technology, coaches are now being secretly filmed during practices and in the locker room. Videos documenting the coaches’ inappropriate language and actions towards their players during practices have led to highly publicized firings.
The sports community is familiar with the recent firings of coaches after footage was released with evidence of them yelling and demeaning players. Many of these videos were filmed by cameras hidden from public view. This raises criminal concerns because my state’s wiretapping statutes prohibit the publication of secret videos.
Mike Rice, Rutgers University men’s basketball coach, was fired after a video surfaced of him berating players during a practice. During a closed practice, Rice taunted players with vulgar language and threw basketballs at them. Although New Jersey law considers the athletics practice a private area, and grants Rice a reasonable expectation of privacy, previous courts have suggested that Coach Rice’s consent was not necessary. According to New Jersey’s Statute Title 2A: Administration of Civil and Criminal Justice, an individual who is a party to either an in-person conversation or electronic communication, or who has the consent of one of the parties to the communication can lawfully record or disclose the contents of the conversation.
In another example of secret videotaping, East Michigan football coach Ron English was dismissed after a recording was released of him using inappropriate language with his student athletes. Michigan is a two-party consent state, meaning that all parties must give consent before recording a private conversation. Mich. Comp. Laws §750.539c. However, because one Michigan court interpreted this statute as applying to only situations where a third party has intercepted a communication, a participant in a conversation may record that conversation without the permission of other parties.
Even though the New Jersey and the Michigan statutes seem to be in conflict, they deliver similar results: the videos were released without the secret cameraman facing punishment, evidencing differing attitudes toward secret recordings state-to-state. Although we have yet to hear of a case where a coach in Pennsylvania has had a secret recording leak, these situations beg the question: what would happen in Pennsylvania?
Recordings fall under the Pennsylvania wiretapping law, which requires two-party consent. 18 Pa. Cons. Stat. §5703 makes it a crime to record either an in-person conversation or telephone communication without the consent of all parties. Therefore, it follows that, if a player attempted to record a coach in a practice secretly in Pennsylvania, he or she would be in violation of the law. Further, because practices are closed to the public, coaches have a “reasonable expectation of privacy” because they 1) actually expect privacy, and 2) the expectation is one that society as a whole would think is legitimate.
Does this mean that we all have to check our camera phones at the door when attending a Penn State athletic event? Not at all! The Pennsylvania statute does not cover oral communications when the speakers do not have an “expectation that the communication is not subject to interception under circumstances justifying such an expectation.” 18 Pa. Cons. Stat. §5702. For example, if a coach is at a game that is open to the public, or is having a conversation in a public place, because he or she has no “reasonable expectation of privacy,” the coach can be filmed secretly without giving consent because he or she has no “reasonable expectation of privacy.”
What recourse would a coach in Pennsylvania have if a secret recording of their actions leaked to the press? Anyone whose communication has been recorded or disclosed in violation of the PA wiretap law can bring a civil suit to recover actual and punitive damages, attorney’s fees, and court costs, so recorders, beware.
Posted Feb. 17, 2014