Is it legal to *prohibit* recording a conversation in Pennsylvania?

Question

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:}

<sub>- 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.</sub>

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.

Answer 1

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.