At least one good thing has already come from Donald Sterling’s very public shaming: a heightened public awareness that even our “private” communications are increasingly susceptible to interception, recording and rapid dissemination. Commissioner Silver, if you’re reading this, please note that we: (1) love this game; (2) admire your work; (3) routinely provide complimentary initial consultations; and (4) are open to discussing alternative fee arrangements (including premium tickets to sporting events).
In an instance of coincidental timing, last week the Pennsylvania Supreme Court unanimously found in Commonwealth v. Spence (J-90-2013) that the Pennsylvania Wiretapping and Electronic Surveillance Control Act, 18 Pa. C.S.A. §§5701 et seq., does not prohibit the surreptitious interception of private communications, so long as the interception is accomplished using a telephone.
Specifically, the Court concluded that telephones (whether smartphones, mobile phones or landline phones), are excluded from the Act’s definition of “electronic, mechanical or other device[s].” Because the Pennsylvania Wiretap Act only prohibits the “interception” of private communications using “electronic, mechanical or other device[s],” the Court reasoned that the Act does not prohibit or otherwise limit the interception of private communications using telephones.
In Spence, a state trooper used an arrestee’s mobile phone to call Spence (the arrestee’s drug supplier), then handed the phone to the arrestee and directed him to activate its speaker function so the trooper could eavesdrop on the conversation between Spence and the arrestee. During the conversation Spence incriminated himself; he was quickly arrested and charged with various drug offenses.
Following his arrest, Spence argued the evidence against him should be suppressed because the state trooper who secretly listened in on his cell phone conversation did so in violation of the Pennsylvania Wiretap Act. If law enforcement “intercepts” a communication in violation of the Act, the evidence obtained may be suppressed; if a citizen violates the Act (for example, by secretly recording a private communication), he or she is subject to potential criminal liability.
The trial court determined the trooper did indeed use an “electronic, mechanical, or other device” (namely the arrestee’s mobile phone) without prior approval to “intercept” Spence’s conversation with the arrestee, and therefore suppressed the evidence against him. On appeal the Pennsylvania Superior Court affirmed suppression of the evidence.
The Commonwealth then appealed to the Pennsylvania Supreme Court and there argued the arrestee’s mobile phone was not an “electronic, mechanical or other device” for purposes of the Act. As a result, the Commonwealth contended, the trooper could not have “intercepted” the informant’s conversation with Spence in violation of the Act, and the evidence against Spence should not have been suppressed.
The Pennsylvania Supreme Court agreed, relying on a nuanced statutory exclusion included in the Act’s definition of “electronic, mechanical or other device.” 18 Pa. C.S.A. § 5702 excludes from the Act’s broad definition of “electronic, mechanical or other device[s]” the following:
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 or 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 Pennsylvania legislature added this exception to the definition of “electronic, mechanical or other device” in 1988. To put that in perspective, smartphones did not exist in 1988 and would not achieve commercial popularity for more than a decade. Siri was not yet even the slightest twinkle in a then-young Steve Job’s eyes. Mark Zuckerberg was 4 years old. The founders of Google were freshmen – in high school. Apple’s split-adjusted stock price hovered around a heady $10.25.
The Pennsylvania Wiretap Act also includes specific exceptions that allow telephone marketers and utility providers to record their conversations with marketing subjects and customers, so long as they are notified of the recording. 18 Pa. C.S.A. § 5704. We suspect you’ve all heard a telephone marketer or customer service representative on the other end of a telephone tell you, in rapid monotone, that your conversation is being recorded for quality assurance purposes.
The Pennsylvania Supreme Court in Spence, however, found that the way or by whom a telephone is used to record or otherwise intercept communications is immaterial – the Act does not prohibit the use of telephones to intercept communications, period: “the language of the statute does not state that it is the use to which the telephone is being put which determines if it is considered a device.”
Respectfully, in our view the statutory exclusion of telephones from the Act’s definition of “electronic, mechanical or other device[s]” appears intended to convey only that when people use their telephones to communicate with others in the ordinary course of their business or day-to-day activities, they are not at risk of violating the Act. If the legislature intended otherwise, there would be little reason to carve out specific statutory exceptions for telephone marketers and utility providers who wish to record their telephone conversations.
The statutory exclusion for hearing aids, we think, also supports our view. If a hearing aid is used to restore the user’s hearing to normal – and thereby enable them to communicate more effectively with others – then it is not considered a “device” for purposes of the Act. But if someone uses a hearing aid to amplify their hearing beyond normal human capacity – so as to eavesdrop on another’s communications – then the same hearing aid is considered a device for purposes of the Act.
Since the Wiretap Act’s inception, Pennsylvania has been considered a dual-party-consent state, a jurisdiction where folks’ private communications – including telephone conversations – were protected against carte-blanche, surreptitious recording or other interception. Right or wrong in its statutory interpretation, the Pennsylvania Supreme Court’s decision in Commonwealth v. Spence throws that notion into substantial disarray.
We do not think the Pennsylvania legislature intended in 1988 to enact a blanket exclusion of all telephones from the Act’s definition of “electronic, mechanical or other device[s].” Suppression of evidence and potential criminal liability under the Act should not depend on whether the device used to intercept a communication is a telephone. A citizen who secretly records a private communication using her smartphone should be held to the same standard under the Act as someone who engages in the same conduct using a tape recorder.