{"id":1727,"date":"2016-10-22T19:37:41","date_gmt":"2016-10-23T00:37:41","guid":{"rendered":"http:\/\/sites.law.duq.edu\/juris\/?p=1727"},"modified":"2017-11-20T21:15:31","modified_gmt":"2017-11-21T02:15:31","slug":"if-it-looks-like-a-telephone-and-acts-like-a-telephone-its-not-a-telephone","status":"publish","type":"post","link":"https:\/\/sites.law.duq.edu\/juris\/2016\/10\/22\/if-it-looks-like-a-telephone-and-acts-like-a-telephone-its-not-a-telephone\/","title":{"rendered":"If It Looks Like a Telephone and Acts Like a Telephone, It\u2019s [NOT] a Telephone"},"content":{"rendered":"
\"Photo<\/a>
Photo courtesy of David Drexler on Flickr<\/a>. Some rights reserved. (CC BY 2.0<\/a>)<\/figcaption><\/figure>\n

By Amy Kerlin, Staff Writer
\n<\/strong><\/p>\n

In Commonwealth v. Fant<\/em>, the Pennsylvania Supreme Court recently held that the device used for communication between an inmate behind a glass wall and a visitor is not a telephone and is therefore not excluded from Pennsylvania\u2019s Wiretap Act.[1]<\/sup><\/a><\/p>\n

Pennsylvania\u2019s Wiretap Act protects the privacy of citizens by generally prohibiting the interception of wire or oral communications.[2]<\/sup><\/a> Among its exclusions, Pennsylvania\u2019s Wiretap Act allows correctional facilities to freely monitor or record \u201ctelephone calls\u201d from or to an inmate when certain conditions are met.[3]<\/sup><\/a> So long as inmates are notified in writing regarding recording, and visitors are also notified of monitoring and recording, \u201ctelephone calls\u201d between inmates and visitors can be monitored and recorded by the facility.[4]<\/sup><\/a><\/p>\n

Rahiem Cardel Fant pled not guilty to charges related to him allegedly stabbing a man.[5]<\/sup><\/a> Awaiting trial, he was detained at the Clinton County Correctional Facility, where he received visitors.[6]<\/sup><\/a> During these visitations, conversations between Fant and his visitors while the parties were separated by a glass partition \u2014 communicating with a device in which Fant inputted his inmate personal ID number to connect \u2014 were monitored and recorded by the facility.[7]<\/sup><\/a> On a motion in limine, Fant sought to exclude these recordings.[8]<\/sup><\/a><\/p>\n

During a suppression hearing, the court questioned the warden of the facility regarding the fact the conversations do not go through nor get recorded by an outside telephone company.[9]<\/sup><\/a> The court ultimately determined that because these conversations did not utilize telephones lines, equipment, or services outside the facility, the device only resembled<\/em> a telephone; as these conversations are not within the everyday scenario of a telephone call, these visit conversations were not \u201ctelephone calls\u201d under the statute.[10]<\/sup><\/p>\n

The Pennsylvania Superior Court reversed the lower court after considering four definitions of \u201ctelephone\u201d and because the conversations \u201cgo through and are recorded by the inmate phone company.\u201d[11]<\/sup><\/a> The Superior Court held that the device was a \u201ctelephone\u201d under all four definitions, and the visits were \u201ctelephone calls\u201d because of the lack of distinction between internal or external calls in the Act.[12]<\/sup><\/a><\/p>\n

On appeal, the Pennsylvania Supreme Court highlighted that the Superior Court opined without citing authority and determined the term \u201ctelephone calls\u201d must be construed by its ordinary, everyday meaning.[13]<\/sup><\/a> The court, by construing the statute in its contextual entirety rather than \u201ctelephone calls\u201d separately and distinctly, determined that the Superior Court\u2019s definitions of \u201ctelephone\u201d were too broad and against the drafters\u2019 understanding of the term.[14]<\/sup><\/a><\/p>\n

Instead, Pennsylvania\u2019s highest court defined \u201ctelephone calls\u201d in the context of the Wiretap Act, as \u201ca communication that involves the (1) dialing of a telephone number, and; (2) an apparatus that is connected by wire or the like to a telephone company\u201d that \u201c(3) permits a caller to converse with a call recipient whose similar apparatus is associated with the dialed telephone number.\u201d[15]<\/sup><\/a> The court noted these visit conversations are face-to-face, and although the inmate and visitor use handsets to communicate through the partition, these conversations more closely resemble in-person visits.[16]<\/sup><\/a><\/p>\n

The court further reasoned that the use of \u201ccalls\u201d alongside \u201ctelephone\u201d in the Act refers to a device used to make a telephone call.[17]<\/sup><\/a> Because ordinary telephone \u201ccalls\u201d require dialing a telephone number specific to another person, the input of an inmate\u2019s personal ID number is not a telephone number.[18]<\/sup><\/a> Furthermore, the court determined that \u201cfrom or to an inmate\u201d refers to a reciprocal functionality where each device has an associated telephone number and either party can dial the other.[19]<\/sup><\/a> In the present case, Fant\u2019s visitors were unable to dial anyone, nor were they calling \u201cinto\u201d the facility.[20]<\/sup><\/a> Rather, the visitors were sitting on the other side of a glass partition face-to-face with Fant.[21]<\/sup><\/a><\/p>\n

The court, however, failed to consider the policy implications of strictly inhibiting correctional facilities from freely monitoring and recording these visitation conversations. As Justice Baer noted in his dissent, inmates can now use these conversations to conspire with visitors to destroy evidence, influence witnesses, or smuggle contraband.[22]<\/sup><\/a> Furthermore, the court, although fully within its discretion, incorrectly ignored a previous Superior Court holding that inmates do not have a reasonable expectation of privacy during visitation conversations, leaving visitation conversations unprotected under the Act.[23]<\/sup><\/a><\/p>\n

 <\/p>\n

Sources<\/strong><\/p>\n

\n

[1]<\/a> — A.3d —, No. 66 MAP 2015, 2016 WL 5462712, *1, *5 (Pa. September 28, 2016).<\/p>\n

[2]<\/a> Id.<\/em> at *1; see<\/em> 18 Pa.C.S.A. \u00a7 5708.<\/p>\n

[3]<\/a> 18 Pa.C.S.A. \u00a7 5704.<\/p>\n

[4]<\/a> \u00a7 5704(14).<\/p>\n

[5]<\/a> Fant<\/em>, 2016 WL 5462712, at *1.<\/p>\n

[6]<\/a> Id.<\/em><\/p>\n

[7]<\/a> Id.<\/em><\/p>\n

[8]<\/a> Id.<\/em><\/p>\n

[9]<\/a> Id.<\/em> at *2-3.<\/p>\n

[10]<\/a> Id.<\/em> at *3.<\/p>\n

[11]<\/a> Commonwealth v. Fant<\/em>, 109 A.3d 775, 779 (Pa. Super. 2015) (citations omitted).<\/p>\n

[12]<\/a> Id.<\/em><\/p>\n

[13]<\/a> Fant<\/em>, 2016 WL 5462712, at *5-6.<\/p>\n

[14]<\/a> Id.<\/em><\/p>\n

[15]<\/a> Id.<\/em> at *8.<\/p>\n

[16]<\/a> Id.<\/em> at *6.<\/p>\n

[17]<\/a> Id.<\/em><\/p>\n

[18]<\/a> Id.<\/em><\/p>\n

[19]<\/a> Id.<\/em> at *7.<\/p>\n

[20]<\/a> Id.<\/em><\/p>\n

[21]<\/a> Id.<\/em><\/p>\n

[22]<\/a> Id.<\/em> at *13 (Baer, J., dissenting).<\/p>\n

[23]<\/a> Commonwealth v. Prisk<\/em>, 13 A.3d 526 (Pa. Super. 2011).<\/p>\n","protected":false},"excerpt":{"rendered":"

By Amy Kerlin, Staff Writer In Commonwealth v. Fant, the Pennsylvania Supreme Court recently held that the device used for communication between an inmate behind a glass wall and a visitor is not a telephone and is therefore not excluded from Pennsylvania\u2019s Wiretap Act.[1] Pennsylvania\u2019s Wiretap Act protects the privacy [\u2026] <\/p>\n

<\/div>\n

Read More<\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[6,4],"tags":[690,682,681,684,683,689,688,673,675,680,678,685,679,687,686,676,674,677],"class_list":["post-1727","post","type-post","status-publish","format-standard","hentry","category-juris-blog","category-posts","tag-baer","tag-correctional-facilities","tag-definitions","tag-fant","tag-inmates","tag-justice-baer","tag-pennsylvania-superior-court","tag-pennsylvania-supreme-court","tag-pennsylvania-wiretap-act","tag-rahiem-cardel-fant","tag-telephone","tag-telephone-calls","tag-telephones","tag-visitation","tag-visitors","tag-wiretap","tag-wiretap-act","tag-wiretapping"],"_links":{"self":[{"href":"https:\/\/sites.law.duq.edu\/juris\/wp-json\/wp\/v2\/posts\/1727","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/sites.law.duq.edu\/juris\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/sites.law.duq.edu\/juris\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/sites.law.duq.edu\/juris\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/sites.law.duq.edu\/juris\/wp-json\/wp\/v2\/comments?post=1727"}],"version-history":[{"count":10,"href":"https:\/\/sites.law.duq.edu\/juris\/wp-json\/wp\/v2\/posts\/1727\/revisions"}],"predecessor-version":[{"id":1788,"href":"https:\/\/sites.law.duq.edu\/juris\/wp-json\/wp\/v2\/posts\/1727\/revisions\/1788"}],"wp:attachment":[{"href":"https:\/\/sites.law.duq.edu\/juris\/wp-json\/wp\/v2\/media?parent=1727"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/sites.law.duq.edu\/juris\/wp-json\/wp\/v2\/categories?post=1727"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/sites.law.duq.edu\/juris\/wp-json\/wp\/v2\/tags?post=1727"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}