Use of Smartphone to Record Conversation Results in Criminal Charges

FLB Law      Mar. 18, 2016

Smartphones with voice notes and video cameras – we all have them. Their omnipresence has created a reality in which everything we do and say has the chance of being recorded. But what are the legalities behind using them to record? For instance, is it legal to record a conversation with your boss – or could that be considered an illegal act, akin to wiretapping? A recent legal case allowed the courts to weigh in on this issue, and the implications for employees and employers could be huge.

Pennsylvania Law

Under Pennsylvania Law, “a person is guilty of a felony of the third degree if he … intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept any wire, electronic or oral communication.” 18 Pa.C.S. § 5703(1). The Pennsylvania Wiretapping and Electronic Surveillance Control Act (“Wiretap Act”) thus prevents electronic eavesdropping. The Wiretap Act defines “intercept” as “aural or other acquisition of the contents of any wire, electronic or oral communication through the use of any electronic, mechanical or other device.” The Act further defines an “electronic, mechanical or other device” as:

Any device or apparatus, including, but not limited to, an induction coil or a telecommunication identification interception device, that can be used to intercept a wire, electronic or oral communication other than:

Any telephone or telegraph instrument, equipment or facility, or any component thereof, furnished to the subscriber or user by a provider of wire or electronic communication service in the ordinary course of its business, or furnished by such subscriber or user for connection to the facilities of such service and used in the ordinary course of its business, or being used by a communication common carrier in the ordinary course of its business, or by an investigative or law enforcement officer in the ordinary course of his duties….

Voice Notes App: Telephone or Wiretap?

So, what happened when an employee used the “Voice Notes” application on his smart phone to surreptitiously record a conversation with his boss? Was there a violation of the Wiretap Act because he intercepted the content of an oral communication through the use of an electronic device? Or was the employee protected by the exception that applies to the use of a telephone or any component thereof? The Pennsylvania Superior Court faced this question in the case of Commonwealth v. Smith.

The facts were not at issue. Smith had filed an ethics complaint against his employer and, at the same time, was scheduled to meet with his supervisor to discuss his future duties with the company. When Smith saw a copy of his ethics complaint on the supervisor’s desk, he decided to record the conversation using his smartphone. When subsequent litigation between Smith and his former employer ensued, the employer became aware of the recording and reported it to the police. Smith was arrested and charged with violating the Wiretap Act. Smith moved to dismiss the charges, which the trial court granted. The Commonwealth appealed.

On appeal, the Superior Court had to determine whether Smith’s use of a “voice memo” app on his smartphone to record his conversation with supervisor was prohibited by the Wiretap Act and therefore, supported a charge of interception of oral communications. The Superior Court viewed the issue as one of statutory interpretation — did the words and intent of the statute support the charges?

Unfortunately for Smith, the Superior Court reasoned that his “telephone” was in fact a “mini-computer,” and the voice notes app the functional equivalent of a tape recorder. Recognizing that “[t]he focus and purpose of the [Wiretap Act] is the protection of privacy,” and that any surreptitious recording of a conversation that, by all accounts, would appear to be private, is a violation of the Act, the Superior Court concluded that Smith’s conduct fell within the Act’s proscription, and remanded the case to the trial court for further proceedings.

Implications of the Law

The result is the Wiretap Act, originally enacted when physically intercepting communications by “tapping” a land line was the state of the art, proved flexible enough to keep up with changes in technology and protect expectations of privacy. The practical lesson for individuals is that just because there’s an app, doesn’t mean that it is appropriate to use it in all circumstances. As traditional notions of privacy and developments in technology continue to evolve and come into conflict, sensitivity to the proper balance between what one can do and what one is permitted to do under the law needs to be maintained. And for employers, it may be time to update your handbook to address these and other issues related to today’s technology in the workplace.

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