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Using app to secretly record conversation a violation of wiretapping law, state SC rules

By Rick Carlton | Mar 23, 2016

| Apple, Inc.

HARRISBURG - A February ruling from the state Supreme Court confronted how existing laws apply to new technology, as the court ruled that using a cell phone app to secretly record a conversation is a violation of a wiretapping law.

In Commonwealth v. Smith, a former employee utilized an iPhone voice app to surreptitiously capture and store various statements delivered by a supervisor during a 2012 private meeting. Consequently, and after a series of additional workplace conflicts, the employee was terminated for cause.

During the course of the employee’s resultant wrongful termination lawsuit, the supervisor’s recorded statements were discovered by the company’s attorney during discovery.

In turn, the attorney passed the information on to the Northern York County Regional Police Department (NYCRPD) and the Commonwealth, who chose to respond by producing a charge of felony wiretapping against the employee.

Subsequently, the charge was reviewed in a pre-trial hearing and a motion for relief was tendered by the employee’s legal representative, including a Petition for Writ of Habeas Corpus. While the lower Court ultimately dismissed the wiretapping charge, the Commonwealth, instead, chose to appeal the decision, leading to further trial escalations and an ultimate finding by the Supreme Court.

While consumer telecommunications systems now drive today’s trend toward the “accepted use” of technology, what about various conflicts emerging between personal technology apps and law as currently written?

Devin Chwastyk - an attorney at McNees, Wallace & Nurick in Harrisburg - explained that Pennsylvania is a "dual consent" state. That means a party to a private conversation can't record it without the consent of other parties.

“(However), a prior decision from the Pennsylvania Supreme Court exempted 'telephones' from the definition of "electronic device," such that a person overhearing a call on a phone is not engaged in illegal 'wiretapping,'" Chwastyk said.

"In the Smith case, the court had to resolve: is a smartphone app more like a telephone, and so can be used to intercept calls, or more like a tape recorder, an 'electronic device' that cannot be used to record private conversations without consent.

"Reasonably, the court found that a smartphone app that records calls is akin to a recorder tied into the telephone line.”

How will the court's decision impact the use of apps?

“The decision has to be viewed in light of two trends,” Chwastyk continued. “First, the rampant impulse of Americans to record snippets of their life to share through social media (i.e., SnapChat); and, second, the proliferation of smartphones and other technology in the marketplace.

“Young people may think nothing of setting an app to record a phone call so that they can share snippets with friends or online. (But) they are unlikely to consider the legal ramifications, and so you can expect an increase in prosecutions for Wiretap Law violations as this technology becomes more and more widely used.”

And finally, did the ruling make sense from one professional’s perspective?

“I think the decision makes sense” he concluded. “But we may be surprised by the impact it has in the 'real world.'

"Just as file sharing led to copyright litigation, and photo sharing led to privacy concerns, this decision could expose many people to criminal liability for sharing conversations they've recorded with their smartphones.

"Our courts will continue to come to grips with the effects of such technological developments, as have been confronted in those other areas.”

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