In a case applying law that pre-dated the “evolving technological advances of the modern day smartphone,” the Superior Court, in Commonwealth v. Smith, No. 1200 MDA 2015 (February 19, 2016) has held that the use of an app on a smartphone to surreptitiously record a conversation is a violation of the PA Wiretap Act.


Smith worked at Unilife Corp as the VP of Integrated Supply Chain until June 14, 2012. On that date, he was relieved of his duties pending a meeting with his supervisor, Ramin Mojdeh (“Mojdeh”), which was scheduled for June 21, 2012, to discuss his future responsibilities. Between June 14 and June 21, 2012, Smith filed an internal ethics complaint, including alleged actions by Mojdeh, using Unilife’s third-party reporting site. During the meeting on June 21, 2012, Smith began recording a conversation with Mojdeh with his iPhone’s “Voice Notes” application. Mojdeh was unaware at the time that Smith recorded the conversation. The existence of the recording was later uncovered by Unilife during the discovery process in the civil matter.

On June 20, 2014, Smith was charged by local police under the PA Wiretap Act relating to the interception of communications. His charge was held over for court after a Preliminary Hearing. He moved for Pre-Trial Relief, including a Petition for Writ of Habeas Corpus, on January 14, 2015.
On June 30, 2015, the trial court entered an order granting Smith’s request for habeas corpus relief, and dismissing the sole charge filed against him. The Commonwealth appealed from the order granting Smith’s motion for habeas corpus relief, and dismissing the sole charge filed against him.


Was Smith’s smartphone a “device” as defined by the PA Wiretap Act or, did his use of his smartphone exempt him from prosecution under that statute?


Even though Smith used an app on his smartphone to surreptitiously record a conversation, his actions constituted a violation of the Wiretap Act.


The trial court had concluded that Smith’s smartphone did not constitute a “device” under the plain language of the Wiretap Act, based upon both principles of statutory construction, and the recently-decided PA Supreme Court case of Commonwealth v. Spence, 91 A.3d 44 (Pa. 2014). The trial court emphasized that the Supreme Court in Spence determined that “all telephones are exempt under the statute, regardless of the use to which the telephone is being put.”

The Commonwealth disagreed with the trial court’s reasoning and, on appeal, argued that the “voice memo” app used by Smith to make an audio recording, was “analogous to a pre-digital ‘tape recorder.’” Although recognizing that the plain language of the Act excludes telephones in its definition of interception “devices,” the Commonwealth nevertheless argued that the legislature did not intend the absurd result which would occur if the trial court’s ruling were upheld. The Commonwealth emphasized that the rapidly evolving technological advances of the modern day smartphone were “inconceivable at the time the applicable laws were enacted.” The Commonwealth argued that evolving technology dictates that “one cannot approach modern cases while wearing blinders.” Accordingly, it asserted “the modern cell phone must be characterized by the function it is performing, and the capacity in which the phone is being used at any given time.”

The Superior Court reviewed Section 5703 of the Wiretap Act which provides that “a person is guilty of a felony of the third degree if he … intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept any wire, electronic or oral communication.”
The Wiretap Act defines “intercept” as “[a]ural or other acquisition of the contents of any wire, electronic or oral communication through the use of any electronic, mechanical or other device.”
The Act further defines an “electronic, mechanical or other device” as “[a]ny device or apparatus, including, but not limited to, an induction coil or a telecommunication identification interception device, that can be used to intercept a wire, electronic or oral communication …other than … [a]ny telephone or telegraph instrument, equipment or facility, or any component thereof., ….

The Superior Court also analyzed the purpose of the Wiretap Act, recognizing that it “emphasizes the protection of privacy,” and, therefore, “the provisions of the Wiretap Act are strictly construed.”
In interpreting a statute, the Superior Court reasoned that “[t]he object of all interpretation and construction of statutes is to ascertain and effectuate the intention of the General Assembly.” And, here, “[t]he focus and purpose of the [Wiretap Act] is the protection of privacy.” Therefore, any surreptitious recording of a conversation that, by all accounts, would appear to be private, is a violation of the Act. However, the Superior Court also noted that the plain language of the Wiretap statute exempts telephones, or “any components thereof” from the definition of an interception “device.”

When determining the legislature’s intent in enacting a statute, the Superior Court noted that “the General Assembly does not intend a result that is absurd, impossible of execution or unreasonable.” The trial court’s interpretation of the Wiretap Act as applicable to Smith’s case, in the Superior Court’s judgment, lead to an absurd result. Smith used an app on his smartphone, rather than a tape recorder. However, the Superior Court found this to be a distinction without a difference. Instead, it concluded that the surreptitious recording of the conversation violated the
provisions of the Act.

The conversation recorded by Smith was an “oral communication,” as opposed to a “wire” or “electronic communication.” An “oral communication” is defined in the Act as “[a]ny oral communication uttered by a person possessing an expectation that such communication is not subject to interception under circumstances justifying such expectation.”

Lastly, the Superior Court found the trial court’s reliance on the Spence decision inapplicable because, in the Spence case, the cell phone at issue was used as a telephone. Here, the facts of Smith’s case presented a different scenario, created, in part, by the technological advances of today’s cellular phones. In conclusion, Smith used an app on his smartphone to surreptitiously record a conversation which violated the Wiretap Act.

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