Challenging his arrest, the dealer argued that his private conversation with the arrestee had been illegally intercepted by the state trooper. The drug dealer incriminated himself during the phone call, and was arrested. Spence, the Pennsylvania Supreme Court departed from this “dual consent” standard, finding that the Wiretap Act does not prohibit the surreptitious interception of private communications, so long as that interception is accomplished using a telephone rather than some other “device.” In that case, a state trooper used an arrestee’s phone to call his drug dealer, then gave the phone back to the arrestee and instructed him to activate the speaker function. Without such consent, the recording of an otherwise private conversation constitutes illegal interception of a conversation, which is a felony criminal offense. State laws like this one, as well as federal wiretapping laws, explain why you have often heard messages from telemarketers informing you that your call may be recorded “for quality assurance purposes.” Such a warning, and your continued participation in the call, indicates that you have consented to the recording. Pennsylvania’s Wiretap Act forbids the “interception” of private conversations using an “electronic, mechanical, or other device,” unless all of the participants consent to that recording. The Pennsylvania courts have delved into the “App Store,” addressing for the first time the use of smartphones and their applications in the context of illegal wiretapping.
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