Surreptitious Recording of Conversation Using Voice Memo App Violates Wiretap Act

An employee who secretly recorded a conversation with his boss using his smartphone’s voice memo app violated the Wiretapping and Electronic Surveillance Control Act (Wiretap Act), the Pennsylvania Superior Court held in Com. v. Smith, __ A.3d __ (No. 1200 MDA 2015, filed Feb. 19, 2016). Talbot Smith, an employee of Unilife Corporation, was relieved of his duties pending a meeting with his supervisor, Ramin Mojdeh. During the meeting, Smith observed a copy of an ethics complaint he had filed against Mojdeh on the desk. Unbeknownst to Mojdeh, Smith began recording the conversation with his smartphone’s voice memo app. Smith was subsequently charged with unlawful interception of oral communications under Section 5703 of the Wiretap Act, 18 Pa. C.S. §5703. Smith petitioned for a writ of habeas corpus, which the trial court granted. The Commonwealth appealed.

On appeal, a unanimous Superior Court panel reversed in an opinion authored by Judge Ott. The Court analyzed key terminology in the Wiretap Act, which states that “a person is guilty of a third-degree felony if he ‘intentionally intercepts’ … an oral communication.” 18 Pa. C.S. §5703. “Intercept” means to acquire the contents of an oral communication through the use of “any electronic, mechanical or other device.” 18 Pa. C.S. §5702. The Act excludes “

[a]ny telephone or … any component thereof” from the definition of “device.” Id. Supreme Court precedent also confirms that telephones are exempt under the Wiretap Act, regardless of how they are used. After considering the foregoing authority, the panel concluded that Smith’s surreptitious recording of his conversation with Mojdeh violated Section 5703. The Court reasoned that Smith used his smartphone not as a telephone but as a tape recorder. For that reason, the Court held that the Act’s telephone exemption did not apply; Smith’s use of the voice memo app constituted an interception device. The Court also distinguished this case from prior cases where police officers did not violate the Act by eavesdropping on a cell phone conversation or observing text messages sent and received on a tablet computer.
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