A unanimous three-judge panel of the Pennsylvania Superior Court recently held in Commonwealth v. Smith that a man who used a “voice memo” app on his smartphone to record a conversation with his boss should be charged with the interception of oral communications, which is a violation of the Wiretap Act.
Section 5703 of the Wiretap Act assigns a third-degree felony to the crime of intercepting a communication, and Section 5702 defines “intercept” as the acquisition of a communication through the use of “any electronic, mechanical or other device.”
In defining “device,” the act carves out an exception for “any telephone … or any component thereof.” On appeal, the state argued the voice memo app used by Smith was analogous to a pre-digital tape recorder and noted the rapid technological advances of recent times along with the fact that a smartphone would have been “‘inconceivable'” at the time the Wiretap Act was enacted.
Smith argued that the app fell within the telephone exemption in the definition of “device” and also warned of the danger of characterizing his use of a smartphone as a wiretap violation, arguing that “‘every person in possession of an iPhone in Pennsylvania would arguably be in violation of the act.'” The Superior Court, however, disagreed.