Recording a conversation using a smart phone app without consent is a felony in Pennsylvania.

Posted By Cliff Tuttle | March 7, 2016

No. 1,252

COMMONWEALTH v. TALBOT S. SMITH, 2016 Pa. Super. 43.

Summary:  Use of a smart phone app to record a conversation without consent of the other party is a felony.

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Talbot Smith was a corporate executive who used the voice memo application on his smart phone to surreptitiously record a meeting with his boss.  The existence of the recording was uncovered during discovery during civil litigation between Smith and the company following his discharge.

Smith was charged with interception of of oral communications under the Wiretapping and Electronic Surveillance Control Act, 18 Pa. C.S. § 5703.

The trial court granted the defendant’s petition for writ of habeas corpus and the Commonwealth appealed to the Superior Court.

The Superior Court noted that Section 5703 of the Wiretap Act provides that “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) (emphasis supplied).

However, the statute contained an exception for:” 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. . . .”

The trial court applied the Pa. Supreme Court’s decision in Commonwealth v. Spence, 91A3d 44 (2014). In Spence, the Supreme Court had held that the use of a telephone was exempt under the statute, regardless of “the use to which the telephone is being put.” There, the police had required a drug dealer to call a suspect with his cell phone and listened to the conversation on the speaker.  No recording of the incriminating communication was made.  The police simply listened.

The Commonwealth argued that in the Smith case, the voice memo app used by the Defendant was not a telephone function, but was more analogous to a pre-smart phone era tape recorder. The Superior Court agreed.

Of course, this holding, which was published on February 19, 2016, is subject to appeal to the Supreme Court.

CLT

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CLIFF TUTTLE has been a Pennsylvania lawyer for over 45 years and (inter alia) is a real estate litigator and legal writer. The posts in this blog are intended to provide general information about legal topics of interest to lawyers and consumers with a Pittsburgh and Western Pennsylvania focus. However, this information does not constitute legal advice and there is no lawyer-client relationship created when you read this blog. You are encouraged to leave comments but be aware that posted comments can be read by others. If you wish to contact me in privacy, please use the Contact Form located immediately below this message. I will reply promptly and in strict confidence.

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