The Pennsylvania courts have delved into the “App Store,” addressing for the first time the use of smartphones and their applications in the context of illegal wiretapping.
Pennsylvania’s Wiretap Act forbids the “interception” of private conversations using an “electronic, mechanical, or other device,” unless all of the participants consent to that recording. State laws like this one, as well as federal wiretapping laws, explain why you have often heard messages from telemarketers informing you that your call may be recorded “for quality assurance purposes.” Such a warning, and your continued participation in the call, indicates that you have consented to the recording. Without such consent, the recording of an otherwise private conversation constitutes illegal interception of a conversation, which is a felony criminal offense.
In 2014, in Commonwealth v. Spence, the Pennsylvania Supreme Court departed from this “dual consent” standard, finding that the Wiretap Act does not prohibit the surreptitious interception of private communications, so long as that interception is accomplished using a telephone rather than some other “device.” In that case, a state trooper used an arrestee’s phone to call his drug dealer, then gave the phone back to the arrestee and instructed him to activate the speaker function. The drug dealer incriminated himself during the phone call, and was arrested. Challenging his arrest, the dealer argued that his private conversation with the arrestee had been illegally intercepted by the state trooper. The court disagreed, finding that Pennsylvania’s General Assembly had deliberately excluded telephones from the definition of “electronic, mechanical, or other device.” Because the state trooper had not used any “device” other than the telephone itself to record the call, the Wiretap Act did not forbid his actions.
In February, in Commonwealth v. Smith, the Pennsylvania Superior Court considered this exception for use of a “telephone” in light of “evolving technological advances of the modern day smartphone.” In Commonwealth v. Smith, an employee was charged with interception of oral communications after he recorded a conversation he had with his former boss during a private meeting. Without the boss’s knowledge or consent, the employee began recording the conversation with his iPhone’s “Voice Notes” app to capture statements regarding an ethics complaint. After this recording was discovered during the employee’s wrongful termination lawsuit, the employee was charged with a felony violation of the Wiretap Act.
The Superior Court had to decide whether the Act’s exception for interception by use of a “telephone” encompassed today’s smartphone capabilities. The court found the use of a smartphone app constituted the illegal use of an “electronic, mechanical, or other device” rather than the use of a “telephone” permitted by the exception to the wiretapping law. The court ruled that, “[a]lthough [the employee] used an app on his smartphone, rather than a concealed tape recorder, to surreptitiously record his conversation with [his former boss], the result is the same. His actions constituted a violation of [the Wiretap Act].”
The case offers another example of the care that must be taken before recording a private conversation in Pennsylvania. Without explicit consent from the participants, such recording is illegal. This is true whether the conversation is captured on surveillance video, a tape recorder, or a smartphone app.
Devin Chwastyk is chair of the Privacy & Data Security group at McNees Wallace & Nurick. He counsels organizations with regard to data security policies and in responding to data breaches.