Monday, July 06, 2015

Wiretapping, the iPad and "Devices"

This post examines an opinion the Superior Court of Pennsylvania recently issued in a criminal case:  Commonwealth v. Diego, 2015 WL 3868639 (2015).  The court begins its opinion by explaining that the
Commonwealth appeals from the trial court's order granting Curtis Doval Diego's . . . suppression motion based on purported violations of the Wiretapping and Electronic Surveillance Control Act, 18 Pennsylvania Consolidated Statutes § 5701 et seq. (`Wiretap Act’ or the `Act’).

The Commonwealth contends that an iPad is not a `device’ as that term is defined under the Wiretap Act, and that Appellee's text messages were not `intercepted’ within the meaning of the Act. The Commonwealth also argues that [Diego] lacks a reasonable expectation of privacy in his text message communications. . . .
Commonwealth v. Diego, supra.  Here, “the Commonwealth” basically refers to the prosecution, as in “State v. Smith.”
The Superior Court then quoted from the trial court’s “factual summary” of the events that resulted in this appeal:
Following an investigation of stolen guns involving Gary Still, Detective James Moyer of the Swatara Police Department went to Still's father's residence following Still's release from the hospital on February 21, 2013. Detective Moyer had determined that Still was involved in the theft of approximately twelve (12) firearms from the residence of 740 High Street. Detective Moyer advised Still of his Miranda rights.

Still stated that he took numerous guns over a period of eight (8) weeks, and told the officers that he purchased heroin from [Diego]. Still `traded’ two of the guns he stole in exchange for heroin. Still indicated that these transactions with [Diego] were set up on his iPad, which had been seized earlier by the police as part of the firearms investigation.
Commonwealth v. Diego, supra.
The opinion then goes on to explain that Detective Moyer
`testified that he asked Still if he would set up a heroin deal with [Diego]. Still was told by the officers that it would be in his best interest to do so. Still agreed, telling the officers he would use the text messaging service on his iPad. The transaction took place in the basement of the police station and was set up with Still communicating directly with [Diego] on the iPad. Still relayed to the detectives each response from [Diego]. In the room with Still were at least six (6) law enforcement officers. Detective Moyer testified that Officer Corey Dickerson was sitting next to Still during the communications and said it was possible that the officer observed what Still was doing on the iPad.’

`Specifically, a transaction was set up to take place at the Courtyard Marriot, and Still provided a description of [Diego] and his car. When the time came for the deal, Still was on location with the officers and pointed out [Diego]. [He] was found to be in possession of multiple bundles of heroin and drug paraphernalia. [He] sought suppression of these items, which was granted by this [c]ourt.’

Suppression Court Opinion, 3/16/15, at 1–2.

Following a suppression hearing conducted on January 31 and February 20, 2014, during which the trial court heard testimony from Detective Moyer and Gary Still, the trial court requested that the parties brief the suppression-related issues. Both parties filed their memorandums of law on April 4, 2014. Subsequently, on October 28, 2014, the court granted [Diego’s] suppression motion.
Commonwealth v. Diego, supra.
The Commonwealth appealed that ruling, raising these issues:
[1]. Whether the trial court erred in granting [Diego’s] motion to suppress evidence because [his] te[x]t messages were not `intercepted’ in violation of the Pennsylvania Wiretap Act?

[2]. Whether the trial court erred in granting [Diego’s] motion to suppress evidence because [he] lacked a reasonable expectation of privacy in his text message communications?

[3]. Whether the trial court erred in granting [Diego’s] motion to suppress evidence because [his] iPad is not a `Device’ as defined in the Pennsylvania Wiretap Act?
Commonwealth v. Diego, supra.
The Superior Court noted that “[for ease of disposition, we will address these issues in reverse order.”  Commonwealth v. Diego, supra.  It also explained that when it reviews
the grant of a motion to suppress, we are guided by the following standard of review:
`When the Commonwealth appeals from a suppression order, we follow a clearly defined standard of review and consider only the evidence from the defendant's witnesses together with the evidence of the prosecution that, when read in the context of the entire record, remains uncontradicted. The suppression court's findings of facts bind an appellate court if the record supports those findings. The suppression court's conclusions of law, however, are not binding on an appellate court, whose duty is to determine if the suppression court properly applied the law to the facts.’

Commonwealth v. Scott, 916 A.2d 695 (Pennsylvania Superior Court 2007). . . Further, the construction of a statute raises a question of law. On questions of law, our standard of review is de novo, and our scope of review is plenary. Commonwealth v. Bavusa, 574 Pa. 620, 832 A.2d 1042 (Supreme Court of Pennsylvania 2003).
Commonwealth v. Diego, supra. 
The Superior Court then took up Diego’s third issue, i.e., whether his iPad was a `device’ as defined in the Pennsylvania Wiretap Act.  Commonwealth v. Diego, supra.  It began by noting that this was an issue of first impression, i.e., no Pennsylvania court had issued an opinion addressing it.  The Commonwealth claimed it was not a device within the scope of the Pennsylvania Wiretap Act. Commonwealth v. Diego, supra. 
The court began its analysis by explaining that the state Wiretap act prohibits,
with certain exceptions, the interception of `any wire, electronic or oral communication[.]’ (1)-(3). `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. The term shall not include the acquisition of the contents of a communication made through any electronic, mechanical or other device or telephone instrument to an investigative or law enforcement officer, or between a person and an investigative or law enforcement officer, where the investigative or law enforcement officer poses as an actual person who is the intended recipient of the communication, provided that the Attorney General, a deputy attorney general designated in writing by the Attorney General, a district attorney or an assistant district attorney designated in writing by a district attorney of the county wherein the investigative or law enforcement officer is to receive or make the communication has reviewed the facts and is satisfied that the communication involves suspected criminal activities and has given prior approval for the communication.’ . . .
Commonwealth v. Diego, supra. 
The court went on to explain that the state Wiretap Act “defines the intercepting `electronic, mechanical or other device’’ as:
`Any device or apparatus, including, but not limited to, an induction coil or a telecommunication identification interception device, that can be used to intercept a wire, electronic or oral communication other than:
(1) Any telephone or telegraph instrument, equipment or facility, 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, or furnished by such subscriber or user for connection to the facilities of such service and used in the ordinary course of its business, or being used by a communication common carrier in the ordinary course of its business, or by an investigative or law enforcement officer in the ordinary course of his duties.
(2) A hearing aid or similar device being used to correct subnormal hearing to not better than normal.
(3) Equipment or devices used to conduct interceptions under section 5704(15) (relating to exceptions to prohibition of interception and disclosure of communications).’
18 Pennsylvania Consolidated Statutes § 5702.
Commonwealth v. Diego, supra. 
It also noted that the Commonwealth argued that Diego’s iPad was
`not an intercepting “electronic, mechanical or other device” under the Wiretap Act because it was being used as the functional equivalent of a modern cellular phone, and telephones are explicitly excluded from the definition of what constitutes a “device” under the portion of Section 5702 cited immediately above.’
Commonwealth v. Diego, supra. 
The Superior Court did not agree:
First, [Diego’s] iPad was not an `electronic, mechanical or other device’ under Section 5702 because it was not used `to intercept a wire, electronic or oral communication.’ Indeed, there is not any evidence of record that [Diego] used an iPad to communicate with Still. Moreover, [his] text messaging device, whatever it was, was the origin of the intercepted message, and not the device that purportedly intercepted that message. Gary Still's iPad was purportedly used to intercept [Diego’s] electronic communication. Accordingly, the Commonwealth's claim that [Diego’s] iPad was not a `device within the meaning of the Wiretap Act is simply not relevant to the merit of [Diego’s] suppression motion.

Nevertheless, the Commonwealth also argues that Still's iPad was not an `electronic, mechanical or other device’ within the meaning of the Wiretap Act. In this regard, the Commonwealth again argues that an iPad was the functional equivalent of a telephone under the statutory definition set forth in Section 5702. The Commonwealth cites Commonwealth v. Spence, 91 A.3d 44 (Pennsylvania Supreme Court 2014), in support of this claim.
Commonwealth v. Diego, supra. 
It went on to explain that in Commonwealth v. Spence, supra, the
question before our Supreme Court was whether a state trooper violated the Wiretap Act when he listened to Spence's conversation with an informant via the speaker on the informant's cellular telephone while the informant arranged a drug deal with Spence. The Commonwealth argued on appeal that because telephones were explicitly excluded under the definition of `electronic, mechanical, or other device[s]’ in the Wiretap Act, the trooper had not violated the Act. Spence argued that the informant's phone was not a phone under the Act with respect to the trooper because the informant, and not the trooper, was a subscriber to the phone's communication services.

Our Supreme Court rejected Spence's argument, stating, `we see no basis upon which to categorize the arrestee's cell phone as a device with respect to him, but not as a device with respect to the Commonwealth.’ Commonwealth v. Spence, supra. The Spence Court also held that: `The language of the statute 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.’ Commonwealth v. Spence, supra.
Commonwealth v. Diego, supra. 
The Superior Court then returned to the question at issue in this case, noting that the Commonwealth, which relied on the Spence decision, argued that
[i]n the instant case, Gary Still utilized the text message feature of his iPad to communicate directly with [Diego], who utilized a cell phone. These text messages were sent utilizing a cell phone service, provided to Still in the ordinary course of business. Gary Still's iPad should be categorized as a telephone since it was being utilized as such in this case. In [Diego]'s own suppression brief, the defense conceded that Still's iPad communications `should be treated the same as audible telephone calls.’

Therefore, because Gary Still's iPad is not a `device,’ there was no violation of the Pennsylvania Wiretap Act when Still texted with [Diego] and relayed the responses to the surrounding officers.
Commonwealth's Brief, at 18.
Commonwealth v. Diego, supra.  The Superior Court, though, disagreed, noting that the
Spence decision did not in any way broaden the telephone exception to the definition of what constitutes an `electronic, mechanical, or other device’ under the Wiretap Act. 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, as the Spence Court's holding implies. The trend of convergence between modern computers and telephones aside, at this time the technologies in question remain different not only by degree, but also in kind.
Commonwealth v. Diego, supra.  The Superior Court went on to explain that the
policy decision embodied in adopting such an expansive interpretation of the term ‘telephone’ under the Wiretap Act is beyond the province of this Court. Indeed, if we were to extend the Commonwealth's argument to its logical conclusions, any modern computer, in tablet form or otherwise, would have be considered a telephone under the Wiretap Act when it is used to transmit or receive an electronic communication.
We decline to so radically expand the definition of `telephone’ under the Wiretap Act in this fashion without the benefit of further legislative input. Furthermore, it is, at best, a dubious proposition that the authors of the 1978 Wiretap Act intended “telephone” to include iPads, as the first tablet computers were not invented until the late 1980's.
Finally, our reluctance to expand the telephone exception is consistent with our policy to strictly construe the provisions of the Wiretap Act. . . .

For each and all of the aforementioned reasons, we conclude that an iPad is an “electronic, mechanical, or other device” that does not fall within the telephone exception under the Wiretap Act. As such, the Commonwealth's third claim lacks merit.
Commonwealth v. Diego, supra. 
It then took up Diego’s other two arguments, beginning with his claim that he “had a reasonable expectation of privacy in his text message communications”. Commonwealth v. Diego, supra.  (A reasonable expectation ofprivacy in a place of thing is essential if that place or thing is to be protected by the 4th Amendment’s guarantee of privacy).  
The Superior Court began its analysis of that argument by noting that, in Commonwealth v. Proetto, 771 A.2d 823 (Pennsylvania Superior Court 2001), it had held that
`[w]hile 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.’
Commonwealth v. Diego, supra (quoting Commonwealth v. Proetto, supra).
The court therefore held that the
reasoning of the Proetto Court equally applicable in this case. When [Diego] engaged in a text message conversation with Gary Still, he knew, or should have known, that the conversation was recorded. By the very act of engaging in the means of communication at-issue, [Diego] risked that Gary Still would share the contents of that conversation with a third party.
Commonwealth v. Diego, supra. 
And, finally, it took up the prosecution’s argument that Diego “lacked a reasonable expectation of privacy in this text message communications”. Commonwealth v. Diego, supra.  The Superior Court explained that, as another court pointed out,
`E-mail transmissions are not unlike other forms of modern communication. . . . [I]f a sender of first-class mail seals an envelope and addresses it to another person, the sender can reasonably expect the contents to remain private and free from the eyes of the police absent a search warrant founded upon probable cause. However, once the letter is received and opened, the destiny of the letter then lies in the control of the recipient of the letter, not the sender, absent some legal privilege. . . . Thus an e-mail message, like a letter, cannot be afforded a reasonable expectation of privacy once that message is received.’
Commonwealth v. Diego, supra (quoting U.S. v. Charbonneau, 979 F. Supp. 1177 (U.S. District Court for the Southern District of Ohio 1997)).
The Superior Court therefore found that
[t[his reasoning applies with equal potency to the text messages at issue in this case. When an individual sends a text message, he or she should know that the recipient, and not the sender, controls the destiny of the content of that message once it is received.
Commonwealth v. Diego, supra. 
For these and other reasons, it held that
[i]n sum, we conclude that no Wiretap Act violation occurred and, therefore, that the trial court erred when it granted suppression on that basis. Furthermore, because [Diego] lacked any reasonable expectation of privacy in his text messages after they were received on Still's iPad, there was no constitutional violation of [his] privacy rights.

Commonwealth v. Diego, supra.  It therefore reversed the order granting suppression and remanded the case for further proceedings.  Commonwealth v. Diego, supra. 

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