Mobile Audio Video Recordings May Not be Exempt from Right to Know Requests
The Superior Court of Pennsylvania recently determined that the interception of oral communications recorded by an employee of his former boss using a “voice memo” application on his smartphone violated the Pennsylvania Wiretap Act.
In the Commonwealth of Pennsylvania v. Talbot S. Smith, 2016 Pa. Super. 43, the Court held that the former employee’s recording of his former boss through the use of a voice memo app on his smartphone supported the charge of Interception of Oral Communications pursuant to the Wiretapping and Electronic Surveillance Control Act, 18 Pa.C.S. §5703. Although the trial court determined that telephones are exempt from the Act, the Superior Court disagreed in holding that the use of the smartphone to record a former employer’s conversation was more akin to using a tape recorder on a mini computer. Therefore, any recording of conversation that would appear private would be a violation of the Wiretap Act.
The Superior Court recognized the rapidly evolving technological advances of the modern day smartphone, noting that the United States Supreme Court deemed the term “cell phone” as misleading, as many of the devices are mini computers that likewise have the capacity to be used as a telephone. In fact, smartphones could easily be called cameras, video players, rolodexes, calendars, etc. Accordingly, the use of the “voice memo app” on the former employee’s smartphone effectuated the same result as the use of a concealed tape recorder –a violation of the Wiretap Act.
The Defendant unsuccessfully attempted to distinguish a 2014 Pennsylvania Supreme Court decision, Commonwealth v. Spence, which held that telephones are exempt from the Act. In Spence, a state trooper listened to a conversation involving an informant on the smartphone speaker as the conversation occurred. (There was no tape recording.) The Supreme Court determined that the Trooper did not violate the Wiretap Act when he listened through a speaker on an informant’s cellular telephone. The Court based its decision, in part, on the fact that the device was a telephone (and used as a telephone) which is exempt from the Wiretap Act. There was no recording of the conversation. This differs from the Smith case where the smartphone was used as a tape recorder on what could be deemed a mini computer.
The lesson is clear: a smartphone is not simply a telephone for all purposes, and any voice recording on a smartphone is akin to recording on a digital device. Absent consent from both parties, the surreptitious recording through an app on a smartphone constitutes a violation of the Wiretap Act.
Because this involved an employee/employer situation (the recording was produced in discovery of an employment action) the Superior Court declined to comment on the decision of the underlying court to prosecute Smith for his actions which “by all accounts, appear to have been taken to protect his job and opportunities for future employment.” Regardless of Mr. Smith’s desire to protect himself and his job, his use of a smartphone to record a conversation with his former boss using a voice memo app was not so smart, and was deemed to have violated the Pennsylvania Wiretap Act.
Sheryl L. Brown, Esquire is a Partner of Siana Bellowar.
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