This is not a criminal law blog. But domestic clients sometimes trip over the criminal law “wire” while trying to do seemingly innocent things for “good purpose.”  A classic example is the business of recording a spouse, a child or some other individual to prove “what really happened” at a particular time and place.

Advances in cellular technology now equip just about every form of PDA with the capacity to record and store voice memos. It’s a handy thing for a shopping list or to compile things to tell your lawyer to do.  Of course, the built in microphone has the power to capture voices other than yours and therein lays a problem.

We have written before that Pennsylvania has an old free ranging anti-wiretap statute premised upon what is termed “two party consent.” In a word, this means that before you start to record someone besides yourself, you will need the consent of all of the participants being recorded.

In 2014 the Supreme Court decided Commonwealth v. Spence, 91 A.3d 44.  It is an odd case involving a state trooper overhearing a conversation on a cellular phone while amidst a traffic stop.  In that case, nothing was recorded and the Supreme Court noted that under 18 Pa.C.S. 5702 telephone and telephone components are excluded from the “devices” for which interception is banned.

The panel decision in Commonwealth v. Smith decided on February 19, 2016 represents an attempt to expand the holding in Spence. In Smith the defendant decided that he wanted to record a conversation he was having with his supervisor at work.  When he was later terminated, he sued.  The conversation, recorded without the supervisor’s consent on “voice memo” was later revealed in discovery and it appears the employer turned the matter over to a York County prosecutor.

The defendant asked for the charges to be dismissed because his PDA (the Court uses the title “smartphone”) was a component of the cellular phone and therefore theoretically within the ambit of Section 5702 exemption from the criminal statute as a component to a telephone.

The Superior Court’s reported decision (citable as precedential) holds that the amalgamation of a voice recording application to a “telephone” was not intended to provide protection for surreptitious recording. “The fact that the {defendant] used an app on his smartphone, rather than a tape recorder, to do so, is of no moment.”  In contrast the cellular phone in Spence was being used as a telephone, where here the same device was used purely as a recording device.  The Court took note of Commonwealth v. Diego, 119 A.3d 370 (Pa. Super. 2015) There an incriminating text was sent via an Ipad which was routed through a cellular phone service.  The trial court in Diego held that because the Ipad was being used as equivalent to a telephone, the message could not be admitted.  The Superior Court reversed, declining to expand the definition of telephone and component beyond cellular phone transmission itself.

So the recent update is (1) your recording app is not exempt from the wiretap law because it is arguably a component of your telephone and (2) text messages (at least those not sent from a cellular phone) are subject to interception even though transmitted through cellular lines.