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I went to a walk-in patient care facility earlier this evening, and asked the provider upon his entrance if I could record the interview. (I realize this feels adversarial, but I had a valid reason.) He replied that no, it was hospital policy that encounters could not recorded, and even after explaining the reason, he refused, so I did not. But I do wonder if this is legal.

When I got home, I looked it up. According to this digital media law site, it is not illegal to record a conversation if you are one of the parties:

Federal law permits recording telephone calls and in-person conversations with the consent of at least one of the parties. This is called a "one-party consent" law. Under a one-party consent law, you can record a phone call or conversation so long as you are a party to the conversation.

I also saw that Pennsylvania's wiretapping law is a "two-party consent" law.

I tried to read the wiretapping law but gave up pretty quickly.

So I'm left to wonder.

Is it legal to prohibit recording a conversation in Pennsylvania?

I have never been threatened with a lawsuit, so I'm a bit less leery of patients suing me than some of my colleagues. Granted it doesn't happen often, but I've always given consent when asked if I could be audio recorded (I'm a physician.) My reasoning:

- It may be helpful to a caregiver who was unable to attend the visit.
- It is no different than bringing in a friend or relative into the room (It's actually a lot more objective and I only have to answer one person's questions.)
- Due to anxiety over illness, etc., patients only hear/remember about 25% of what a doctor says. An audio recording is a valuable resource for the patient if they want to review instructions or explanations they might have missed.
- It empowers a patient to a small extent, evening out the huge imbalance of power between physician and patient. Anything I can do to increase confidence in me in particular, and in the medical profession in general, is a plus.
- The patient has as much a right to an audio copy of our interaction as a paper copy of the chart.
- I have nothing to hide if I'm doing my best and meeting (hopefully exceeding) the standard of care.
- It protects me as well if a claim is made (I imagine alteration of audio recordings can be detected if necessary.

My previous malpractice carrier encouraged transparency in all things, and had no problems with this. But I never even thought to run this by the legal department of the hospital where I'm now employed, and if it's discouraged, I missed the memo.

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    I would think about it like this: even if it is legal for you to record, it is also legal for the other party to simply decline to speak to you while you are recording. The hospital also has some rights to decide who gets to be on their premises, so they can insist that you follow their rules or leave. – Nate Eldredge Nov 19 '15 at 13:49
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    @NateEldredge - Although it wasn't an Emergency Room (where I work), In the ED you can't kick anyone out unless they're threatening bodily harm or aren't there to be seen. I guess you can refuse to speak without kicking someone out, but that's, well, harsh in the ED. There, you have an obligation to treat all comers. But if If it's legal, my question is answered. It just took me by surprise. And thanks for giving me another way to look at it. – medica Nov 19 '15 at 17:58
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You have misread the DMLP page. In Pennsylvania, it is illegal to record a conversation if you are a party and if the other party does not consent.

The fact that federal law doesn't ban something doesn't mean that states can't ban it. There is generally a presumption that when both the feds and the states can legitimately regulate something, the feds weren't trying to preempt all state laws on the topic. While people often say "federal law takes precedence over state law," the normal rule is that both laws apply; the federal law only blocks the state law if the feds wanted to block said state laws. So far as I can tell, the federal law has never been held to preempt two-party consent laws; the point of the federal law was to restrict recording, not extend it.

It's like how federal law doesn't prohibit taking hostages inside the US to coerce a private company into doing what you want (anti-terrorism laws might, I guess, but the federal hostage-taking law doesn't); while the federal law excludes most hostage-taking in the US, that doesn't mean that it's legal to take hostages. Congress sometimes wants to establish nationwide standards for something, but the presumption is that they didn't.

  • Hmm, I'm not a lawyer, but I (mis?)understood the federal law was as extending it. – medica Nov 19 '15 at 9:57
  • @medica: if that were the case, then 11 states have laws on their books that obviously contradict that federal law. So if Pennsylvania courts really are defying federal law by enforcing two-party consent, then they know they are and presumably would continue to do so until ordered not to by a higher court. – Steve Jessop Nov 19 '15 at 13:30
  • @cpast does jurisdictional boundaries of the state law come into play at all ? I.E. if I am in PA and you are in PA and we're talking to each other, it is illegal for me to record the call without the other party's consent, but if I'm in PA and you are in California, then the Federal laws/statutes apply instead and either of us could record (because it's outside the overall jurisdiction of PA). Please correct me if I'm wrong here, though... this is based on my understanding (which is somewhat limited) of jurisdictional boundaries... – Thomas Ward Nov 19 '15 at 14:01
  • And if you are in a one-party consent state and the other end is in a two-party consent state? – Joshua Nov 19 '15 at 16:18
  • Federal laws are typically written to be open-ended, allowing states to be more restrictive than the federal version. They usually define just one boundary (usually a minimum or maximum) that cannot be crossed. Since federal law requires "at least one party", and state law requires "two parties", there's no conflict in language, so the state law applies. But a state that prescribes recording with the consent of none of the parties would be afoul of this law. – phyrfox Nov 19 '15 at 20:25

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