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Privacy and Technology- Interception of IPad Messages

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iPad was not an "electronic, mechanical or other device" within § 5702 because it was not the functional equivalent of a telephone

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By Attorney Elisabeth K.H. Pasqualini, Criminal Defense Lawyer, Harrisburg, PA

In Commonwealth v. Diego, 2015 Pa. Super. LEXIS 367, *1, 2015 PA Super 143 (Pa. Super. Ct. 2015), the Pennsylvania Superior Court determined that the text or email communications between an informant and the defendant were not subject to the wiretap act, therefore, not subject to suppression. 

There, an informant used his iPad to make arrangements for a drug delivery with the Defendant.  He sat in the basement of the police station while the police were present.  There was a factual dispute as to whether or not the police observed the email/text conversation that was occurring in real time.  This distinction may have altered the outcome.  If there was a simultaneous interception of the texts by the police and the informant, the outcome would likely have been different under the Wiretap Act.  The conversations lead to a buy being set up and the police apprehended the Defendant.

The Wiretapping and Electronic Surveillance Control Act ("Act"), 18 Pa.C.S. § 5701 et seq., prohibits, with certain exceptions, the interception of "any wire, electronic or oral communication."  "Intercept" is defined by the Act as follows: Aural or other acquisition of the contents of any wire, electronic or oral communication through the use of any electronic, mechanical or other device. The term shall include the point at which the contents of the communication are monitored by investigative or law enforcement officers.  Further, the language of Act states that telephones are exempt from the definition of "device"; the language of the statute does not state that it is the use to which the telephone is being put which determines if it is considered a device.

Here, the Court determined that an iPad is not a telephone or telegraph instrument under a common understanding of the relevant terms, and no reasonable person familiar with the now ubiquitous technology of tablet computers would misidentify an iPad as a mere telephone.  The fact that an iPad or any other tablet computer can perform functions similar or identical to a modern cellular phone is not dispositive.  Moreover, that while engaging in a conversation over the telephone, a party would have no reason to believe that the other party was taping the conversation. "Any reasonably intelligent person, savvy enough to be using the Internet, however, would be aware of the fact that messages are received in a recorded format, by their very nature, and can be downloaded or printed by the party receiving the message." By the very act of sending a communication over the Internet, the party expressly consents to the recording of the message.

This case distinguished the decision in Riley and Wurie decisions because this was not a "search" of the contents of a cell phone.  Rather, it is analagous to a letter that is sent.  The police could not open that letter once it is sealed without a warrant, however, upon opening by the intended recipient it the is the property of the recipient and they may do with the information as they wish.

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