You May Be Committing a Felony with Your Smart Phone

In Pennsylvania, the Wiretap Act prohibits an individual from recording someone’s conversation without that person’s knowledge or consent.  It is a felony of the 3rd degree to do so in Pennsylvania.  The Pennsylvania Superior Court was confronted with this issue regarding a man who used his “voice memo” app on his smart phone to record his boss’s conversation.  The legal question became whether someone using their voice memo app on their smart phone is committing a crime, specifically a felony of the 3rd degree.

To raise the stakes even more the Wiretap Act specifically exempted recordings for telephones.  It is important to keep in mind for purposes of this decision that the Pennsylvania Wiretap Act became law long before smart phones were common.

So how do you think the court ruled?  Is it a felony to use your cell phone to secretly record someone’s conversation?

Incredibly, in the case of Commonwealth vs. Smith a unanimous 3 judge panel of the Superior Court ruled that such actions are in fact crimes and felonies of the 3rd degree.

Pittsburgh wrongful death, medical malpractice, slip and fall, products liability and criminal defense attorney Bernie Tully wants you to understand that, as of today, if you use your smart phone to record someone’s conversation without telling them you have just committed a felony in Pennsylvania.

Think about that.  Sometimes you may be recording someone’s conversation with you just to accurately remember what the person told you.  Something you think is important to remember.  Maybe you don’t tell the other person because you don’t want that person to think you are an idiot for not remembering everything he or she said to you.  You certainly have no criminal intent in mind in doing so.

But guess what readers?  Pittsburgh wrongful death, medical malpractice, slip and fall, product liability and criminal defense attorney Bernie Tully wants you to know that INTENT is not necessary to prove a violation of the Wiretap Act.

All the prosecution must do is show that you recorded someone’s conversation without their knowledge or consent.  That is their whole case.  You can get up on the witness stand and say you didn’t mean it until you are blue in the face but it is not going to change anything.

As you can see this February 2016 decision greatly expands the Wiretap Act.  It raises a huge legal concern that ordinary people like you and I can inadvertently be committing a crime.

However, this decision could be re-evaluated.  How?

Well, the defendant could ask for something called a re-argument before the entire Pennsylvania Superior Court and if that strategy doesn’t work they could then ask for the Pennsylvania Supreme Court to review the decision.

Pittsburgh criminal defense attorney Bernie Tully thinks this case is so important it should be heard by the Pennsylvania Supreme Court.

What do you think?

Thanks for reading.

Bernie the attorney