Wiretapping

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iPad Texts?
iPad Texts?

We have written about electronic discovery and Pennsylvania’s wiretapping law on this blog before. For family law attorneys, they are issues which can be critical to your case, but also present a minefield of ethical and evidentiary issues. How information may be collected and in what manner can be unclear; similarly, it can be ambiguous to counsel and the courts how to weigh evidence collected electronically and presented to the court in a manner which makes it difficult to authenticate (i.e. text messages).

The criminal courts are, as always, the great laboratory of evidentiary law and last June the Superior Court issued a ruling in a case involving text messages from an iPad. Specifically, whether the Pennsylvania Wiretapping and Electronic Surveillance Control Act was violated by police when had an informant relay text messages to them from the defendant in a drug deal.  The trial court in Commonwealth v. Diego suppressed the text message evidence.

The Wiretapping Act was originally passed in 1978 and has been periodically updated to address evolving technology, though probably not quickly enough. This case presents iPad communication as a case of first impression.  The Superior Court cited a 2001 case (Commonwealth v. Proetto) which found that there was no reasonable expectation of privacy in sending emails or chat-room messages to third parties. Basically, using email and text services renders moot any expectation of privacy. Not unlike arguments used with social media; once released, an email or text may be forwarded, modified, and read by anyone the recipient chooses to disclose it to. Knowledge that the message was being recorded by text or email was sufficient notice to keep it from within a protected category of communication.

An iPad is not a telephone under the common understanding of the relevant term, the Superior Court reasoned, and no one would misidentify an iPad for a telephone.  The Superior Court’s decision, however, did not ultimately hinge on the type of device more so the method of intercept. The informant cooperated with police and relayed to them the contents of the text messages he received from Diego. Rather than observing them before the informant received them – which the Court identified as being a separate and distinct legal issue – the informant was voluntarily disclosing them to the police after he received them.  Accordingly, the evidence collected which lead to Diego’s arrest was legally obtained.

The take-away, as always, is that anything placed in a digital format poses a threat of being repurposed, passed along, or disclosed to unintended third parties. Maintaining solid “e-security” is difficult, if not overwhelming, but as this case indicates, you cannot be certain that texts and emails are not going to be discoverable or accessible to third parties; you can never be sure the recipient’s eyes are the only ones on them.

(Photo Credit: 123rf.com; Dirk Ercken).

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Aaron Weems is an attorney and editor of the Pennsylvania Family Law Blog. Aaron is a partner in Fox Rothschild’s Blue Bell, Pennsylvania office and practices throughout the greater Philadelphia region. Aaron can be reached at 610-397-7989; aweems@foxrothschild.com, and on Twitter@AaronWeemsAtty.

(Image Credit: technodiaries.org)

The Pennsylvania Supreme Court recently accepted the case of Commonwealth vs. Spence, on appeal from the Superior Court.  This criminal case involves the issue of whether eavesdropping on a speaker-phone telephone call constitutes a violation of Pennsylvania’s Wiretapping and Electronic Surveillance Control Act.  The outcome of this case will have a significant impact on the introduction of electronic communication evidence in all types of cases, including family law cases.

In this situation, the confidential informant was a high school student arrested for illegal possession of prescription drugs.  The student was enlisted as an informant to try to arrest the dealer.  In doing so, a Pennsylvania State Trooper with the Philadelphia Vice Narcotics Unit had the C.I. call the dealer; put the phone on speakerphone in the trooper’s presence and order Percocet, OxyCotin, and Xanax.  The dealer was to deliver them in person to a local Wawa.  Upon the dealer’s arrival, the police were waiting and he was arrested for possession of a controlled substance with intent to manufacture or deliver, as well as a count of possession of drug paraphernalia.

 

At the criminal trial, the Delaware County Prosecutor had asked for a mistrial because they realized they needed to utilize the direct testimony of the confidential informant.  During that break between trials, the defendant filed a Motion to Suppress the evidence on the basis that the State Trooper had violated the Wiretap Act and that any evidence derived from that violation was barred from introduction into evidence.  The trail court judge agreed; the District Attorney’s office appealed and the Superior Court judges agreed with the trial court, leading to another appeal to the Pennsylvania Supreme Court.

 

The impact of this decision will reach beyond criminal cases.  A decision upholding the suppression of this evidence would mean that any time a person overhears a conversation on speakerphone that the potential would exist that that information could be suppressed presumably due to the speaker’s lack of knowledge or consent to expose the info beyond the intended recipient.  Family law litigation often employs the testimony and evidence from individuals who have overheard conversations or recorded conversations (in person) with an unknowing speaker.  The difference between a legal recording and an illegal recording can be a very fine line; the outcome of this case will further shape how electronic recordings are used and whether they will remain a legally reliable method for collecting evidence.

 

Additional information about this case can be found in "The Legal Intelligencer," May 3, 2013, Volume 247, No. 86.

 

 

We tend to think that the use of computer software available on the internet could not possibly result in criminal charges brought against the party using it.  But on Friday October 7 a Court in Delaware County found a man guilty of using Eblaster “spyware” to intercept his Father’s electronic mail because he did not approve of his father’s social relationship with a woman.

We have noted earlier that Pennsylvania has a highly restrictive wiretapping law. The statute is many years old and as such, has not kept pace with explosion of electronic equipment and software intended to capture written messages whether published as email or text messaging. But, suffice to say that if you are using a device to intercept any form of electronic communication, you are in territory where you may be committing a crime no matter how pure you perceive your motives. I f you feel that you must do this for whatever reason, it would be wise to consult with an attorney familiar with both state and federal laws governing these subjects before you begin your project.

 Over the past few weeks, an interesting story emerged about a Michigan husband, Leon Walker, who is facing felony charges stemming from his use of his wife’s Gmail password to access her email account and learn about her extra-marital affair. Mr. Walker used his wife’s computer – which was kept in the house, used by Mr. Walker on a regular basis, and in the same location where she kept her passwords in a notebook labeled “passwords” – to access her emails and confirm his suspicions that she was having an affair with her ex-husband who had abused her and her child – it is quite a story.

 

Mr. Walker’s investigative efforts earned him a felony charge under a Michigan statute designed to combat identity theft. Mr. Walker’s trial is scheduled for February and, in addition to a privacy issue, it also raises the question of what constitutes good “pre-litigation discovery” in a family law case and what bleeds into criminal conduct.

 

While Pennsylvania has identity theft laws (18. Pa.C.S.A. § 4120), the law that more closely resembles the charge levied against Mr. Walker is 18 Pa.C.S.A. § 5703 which prohibits the intentional interception of wire, electronic, or oral communication. In short, § 5703 is Pennsylvania’s wiretapping law and it is classified as a third-degree felony (though the lowest of the felony classes, a third-degree felony carries a possible sentence up to seven years in prison).

 

Whether Pennsylvania’s wiretapping law would be used to prosecute someone accessing their spouse’s email is unclear. It is worth considering, however, whether accessing your spouse’s personal, password protected email account in order to obtain information is comparable to “intentionally [using]…the contents of…electronic communication…knowing…that the information was obtained through interception of a wire, electronic or oral communication” § 5703(3).