Pennsylvania Superior Court Holds That It Is Illegal To Use Voice Memo App On Smartphone To Record Conversation

Ryan Zavodnick | February 29, 2016 | Workers' Compensation

In Pennsylvania, the Wiretapping and Electronic Surveillance Control Act prohibits the interception of oral communications without the consent of both parties to a conversation. The law was passed over 30 years ago and provides that a person is guilty of a felony 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 Act defines the term “intercept” as “aural or other acquisition of the contents of any wire, electronic or oral communication through the use of any electronic, mechanical or other device.” Of course, when the law was passed our country and our state was quite a different place. The iPhone and other smartphones had not taken over the world yet, and it is unlikely that that General Assembly contemplated such devices becoming as prevalent as they are today, and equally as unlikely that the representatives who passed this law envisioned the many applications and capabilities that smartphones now have.

However, as if often the case, the Superior Court was nonetheless confronted with the issue of whether the use of a smartphone app to record a conversation constitutes a violation of a law that was passed before smartphones were created.

Employee Secretly Records Conversation With Former Boss

The facts of Commonwealth v. Smith are relatively straightforward. Mr. Smith worked for Unilife Corporation as the Vice President of Integrated Supply Chain until June 14, 2012. It was on that date that he was notified that he was being fired. Mr. Smith then filed an internal ethics complaint against his boss while he awaited a meeting with his boss.

During the meeting, Mr. Smith noticed that his boss had a copy of the internal ethics complaint on his desk. This alarmed Mr. Smith, and so he began recording the conversation with his boss using his iPhone’s “Voice notes” application. His boss was of course unaware that Mr. Smith was recording the conversation.

After being terminated, Mr. Smith filed a civil complaint against his former employer. During discovery it was discovered that Mr. Smith possessed a recording he had made during his meeting with his former boss. Mr. Smith’s former employer thereafter contacted the police and Mr. Smith was charged with violation the Wiretap Act. The trial court dismissed the claim against Mr. Smith and the Commonwealth appealed.

Superior Court Holds That Mr. Smith Violated The Wiretap Act

On appeal, the Superior Court addressed whether a smartphone constitutes a “device” under the law such that the use of a smartphone to record a conversation would constitute a violation of the law. The Commonwealth argued that the voice memo app was analogous to a tape recorder (which of course nobody uses anymore).

The Superior Court agreed, noting that the trial court’s interpretation of the law would lead to an absurd result. The Court stated that Mr. Smith improperly, electronically recorded his private conversation with his boss, without his consent or knowledge. “The fact that Smith used an app on his smartphone, rather than a tap recorder, to do so, is of no moment.” The Court remanded for further proceedings.

So Why Should You Care About This?

You might be wondering why our firm, a personal injury and workers’ compensation law firm, thinks this decision is important enough to blog about? This decision is important because it is the first time an appeals court in Pennsylvania has addressed this issue. We are sometimes informed by our workers’ compensation clients, who are often engaged in a he-said, she-said battle with their former bosses, that our clients have recordings on their cellphones of conversations with their former bosses and supervisors that directly contradict the information being offered by the employer and the defenses raised by their employers.

Up until now, there was no concrete guidance from the courts regarding whether doing what Mr. Smith did here was permissible or not. Now we can affirmatively state that such recordings are not only impermissible, they are illegal. This means that even if you have “smoking gun” evidence in the form of a recording on your smartphone, you will not only not be able to use the recording to help your case, you may face prosecution if your former employer is aware of the recording and reports your actions to the authorities. The lesson learned is not to record a conversation with your boss, supervisor or any other individual, on any device, without that person’s consent to do so.

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