BETHLEHEM, Pa. (AP) - Concerned about the care his disabled daughter was receiving in a Bethlehem nursing home, John Large set out last June to register his complaint with an administrator.
Tired of the he-said-she-said nature of their previous conversations, Large went to the HCR Manor Care facility on Westgate Drive prepared to make a record of the meeting.
Unbeknownst to Patricia Zurick, the director of nursing services, Large used a video recording device concealed in a pair of glasses to capture the sometimes heated hour-long discussion, court papers say.
No one would have been any the wiser except that Large mailed a DVD containing the footage to an FBI field office in Scranton, according to court documents.
The FBI saw the video as a potential violation of wiretap laws, Large’s attorney said. Agents forwarded the DVD to Bethlehem police, who charged Large with intercepting communications and possession of a device for intercepting communications,
Large, 50, of Lansford, was held in Carbon County Jail until April, when Lehigh County Judge Robert L. Steinberg ordered the charges dismissed.
In his opinion, Steinberg wrote that because Zurick’s office door was open - she testified that she left it open because she was scared of Large - she had no expectation of privacy, a crucial element for determining whether a secret recording is illegal. And because investigators never determined what kind of device Large had used to make the video, Steinberg wrote, the charge of possessing a device for intercepting communications could not be sustained.
He added that Pennsylvania’s wiretap law is not keeping pace with the widespread adoption of technology such as tablet computers and Google Glass - essentially a smartphone contained in eyeglass frames.
One of the issues before the court was whether the glasses Large used had other purposes - as Google Glass does, allowing a user to browse the Internet in addition to recording video and photos - or whether they were simply spy glasses designed to conceal that the wearer is taking video.
“The case demonstrates what others have said, that as ‘our technological powers increase . the side effects and potential hazards also escalate,’ ” Steinberg wrote, quoting a 1970 article that argued as equipment becomes more sophisticated, the line between private and public conversations could blur.
Police, lawyers and judges across the country have been struggling with that question in recent years as the use of cellphones and smartphones as listening devices and tools of the drug trade has increased.
The state Supreme Court has issued a series of decisions clearing the way for police investigators to use suspects’ cellphones.
In 2012, the court ruled that a police officer could send text messages from a suspect’s phone to an accomplice without a warrant. The wiretap law was subsequently amended to comport with the ruling.
Last year, then-Justice Seamus P. McCaffery wrote that a state trooper who used the speaker function of a drug suspect’s smartphone to eavesdrop on arrangements for a drug transaction did not violate the law. The decision hinged on an exception that a telephone subscriber using his own phone was not subject to the law’s restrictions on intercepting communication.
The implications of smartphones being used to record conversations extends to civil law too.
Last month, a Virginia jury awarded $500,000 to a man who inadvertently recorded an anesthesiologist trashing him as he lay unconscious during a colonoscopy, the Washington Post reported.
The man had activated the recorder on his smartphone to capture his doctor’s instructions for his discharge but forgot to turn it off. He was stunned after the procedure to hear the anesthesiologist say she wanted to punch him in the face, suggest that he had syphilis and call him a “retard,” according to the newspaper.
The doctor’s lawyers argued that the recording was illegal, but the patient’s lawyers pointed out that in Virginia, only one party needs to consent to a recording, the Post reported.
In Pennsylvania, the party being recorded also has to consent. Lack of that consent led to a criminal case against former Easton Area School District technology director Thomas Drago, who in 2013 was charged with violating the wiretap law after investigators alleged he had recorded a private meeting of school officials without their consent. He was admitted into a probationary program for first-time offenders, which left him with no criminal record upon completion.
Easton attorney Christopher Shipman said the cases illustrate a need to update wiretap laws to reflect the change in technology.
“You’re going to see a lot of these cases in the next five years as the equipment becomes more sophisticated and sensitive,” he said.
Recently the law was amended to allow audio recordings on school buses. And there is a proposal to amend it again to address police officers wearing body cameras, said Sara Rose, an attorney with the American Civil Liberties Union of Pennsylvania.
She said the group has fought several cases in recent years dealing with the right of people to record their interactions with police officers.
“The Pennsylvania courts are pretty clear that you can’t arrest a person for violating the wiretap act unless the person being recorded has a reasonable expectation of privacy,” she said, adding that a police officer on the street has no expectation of privacy.
The courts have upheld the right of police to arrest people who are truly interfering with law enforcement activities by filming or photographing their work.
Although the technology is changing rapidly, the standard for what conversation is considered private remains the same, said Lehigh County District Attorney Jim Martin, whose office did not appeal Steinberg’s ruling.
“I don’t think it matters very much at all what device is used. The case is always going to turn on whether there is a reasonable expectation of privacy,” Martin said.
He acknowledged that people have less privacy under the law than they probably realize.
“A wide swath of the general public believes that if someone comes into your office, that conversation ought not be subject to recording without your consent, but that’s not what the law says,” Martin noted.
Steinberg wrote that the case against Large hinged on whether the conversation he recorded was an “oral communication,” defined under the law as anything uttered by someone who has a justified expectation of privacy. In other words, if a reasonable person would believe someone else could hear what they’re saying, there is no expectation of privacy.
Steinberg noted that Zurick shared her office with others and left the door open during her meeting with Large and that several other employees were recorded as they participated in the conversation.
In his opinion in the Large case, Steinberg noted the law specifies a surreptitious recording device must be designed “primarily” to intercept wire, electronic or oral communication. He added that the law has been used mainly to prosecute people for pirating satellite television.
“The statute was not intended to prohibit the use of a device merely because it may be adapted to wiretapping or eavesdropping; by the same token however, a device does not fall outside the ambit of the statute merely because it may have innocent uses,” Steinberg wrote.
“Based on the evidence presented, it cannot be determined whether the glasses worn by the defendant were ‘primarily useful for the surreptitious interception of oral communication’ or whether the recording of conversations was just another feature of the device,” Steinberg said.
Information from: The Morning Call, https://www.mcall.com
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