PA Supreme Court: Cell Phone Not a “Device” Under Wiretapping Law

On April 28, the Supreme Court of Pennsylvania issued its decision in Commonwealth v. Spence, 2014 WL 1669795, in which it held that cell phones are not “devices” for the purposes of the Pennsylvania wiretapping statutes, and as such, police (or anyone, for that matter) may intercept communication from a cell phone without violating the wiretapping act.

In Spence, the police had listened, on speakerphone, to a conversation between a police informant and a suspected drug dealer, Wesley Spence. Spence moved to suppress the evidence from the phone call, arguing that the Commonwealth did not get approval prior to listening in on the call. The Commonwealth argued an interception of communications only violates the wiretapping act if a “device” is used, and that a cell phone is not a “device.” 18 Pa.C.S. § 5702 defines an “electronic, mechanical, or other device” as:

Any device or apparatus … that can be used to intercept a communication other than … (1) Any telephone … or any component thereof, furnished to the subscriber or user by a provider of wire or electronic communication service in the ordinary course of its business….

The trial court granted Spence’s motion to suppress and the Superior Court affirmed. The Superior Court reasoned that the cell phone was not a device when used by Spence, because it was furnished to him, but was a device when listened to by the Trooper, because it was not furnished to him. As such, the Superior Court found the intercepted communication to be in violation of the wiretapping act.

In its unanimous opinion, the Supreme Court of Pennsylvania reversed the Superior Court’s holding. The Supreme Court simply examined the text of the statute, which plainly made no distinction between the subscriber and the person listening to the phone call, or in other words, did not distinguish between various “uses” of the phone. It is noteworthy that while the Supreme Court explicitly held that “a state trooper does not violate the Wiretap Act when he listens through the speaker on an informant’s cellular telephone as the informant arranges a drug deal” (emphasis added), the same reasoning would seem to apply to private citizens listening in to phone calls as well. As such, the court’s holding strongly suggests that anyone can listen in on any cell phone communication without fear of violating the wiretapping act.