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In Pennsylvania, it is a crime to record the private conversations of another person without his consent. If someone commits this crime, prosecutors cannot use the illegal recording in court.

Excluding illegal civilian wiretaps from court is a common sense rule. It guarantees that a person cannot be convicted of a crime based on evidence that someone got by committing an illegal act against the person. The Fourth Amendment to the U.S. Constitution already requires that if policeillegally wiretap a person, the illegal recording cannot be used against him in court. Prohibiting illegal civilian wiretaps is a logical extension of the Fourth Amendment rule.

Imagine if the rule did not exist: A person could intentionally commit a crime—recording private conversations without consent—against another.  If a prosecutor used an illegal wiretap in court, would the prosecutor be likely to turn around and prosecute the person who made the illegal recording? And is it too farfetched to imagine a law enforcement officer, with a wink and a nod, telling a complaining witness, “If I recorded the suspect’s conversation, we couldn’t use it in court. But if somebody else did it…”?

It shouldn’t surprise you that prosecutors want to get rid of this “exclusionary rule” for civilian illegal wiretaps.  But it should surprise you that some legislators appear to be considering it. If the supporters of HB 2400 succeed, any illegal wiretap could end up in court as evidence against the victim of illegal, secret surveillance.

One of the changes they want would overturn the Pennsylvania Superior Court’s decision in Pennsylvania v. Cruttenden.  The case involved an informant who turned his cell phone over to police when he was caught with drugs in his car.  The police intercepted text messages from the informant’s alleged supplier and sent replies without revealing their identities. The supplier, thinking he was still talking to the informant, set up a meeting. But when he got there, instead of meeting the informant he was arrested and charged with criminal attempt, conspiracy, and other offenses.  On appeal, the Superior Court held that police violated the Wiretap Act when they failed to get a court order for using the cell phone. If police want to take a person’s cell phone, intercept text messages, and send text messages from the phone while pretending to be the intended recipient, they must get a court to say okay. 

Prosecutors want to pass a law to overturn the case.  They want to allow law enforcement to receive and send text messages on any phone that they “lawfully obtain.” They want law enforcement to be able to do this without any court oversight and without revealing their identities to the people they are communicating with.

Even if you think police should be allowed to use a phone that an informant voluntarily hands over for police to use, the proposed bill would go much farther. Police could intercept and send messages on any phone they “legally obtain.” This appears to allow police to seize the phones of people they arrest, and then use those phones to try to trick others into sending incriminating messages.  It even seems to create an incentive for law enforcement to arrest people in order to seize and use their phones.