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At a time when it seems that privacy rights cannot be eroded any further, the Pennsylvania Supreme Court has ruled in a split decision that people do not have a reasonable expectation of privacy in their telephone conversations. In Commonwealth v. Rekasie, the court ruled that law enforcement officials in Pennsylvania can initiate a telephone call to an individual in his home and record that conversation without a determination in advance that there is probable cause of criminal activity. THE MONITORED PHONE CALLS As part of a drug investigation, agents of the Pennsylvania Attorney General’s Office and a county police department seized 36.8 grams of cocaine from Thomas Tubridy, who told agents that he had received the cocaine from Vincent Rizzo and that Kirk Rekasie had served as the drug courier. Tubridy agreed to participate in the investigation of Rekasie and Rizzo and he consented to have his telephone conversations with them taped. Officers intercepted a total of six conversations — five were to Rizzo and Rekasie’s homes, and the final conversation was intercepted while Tubridy wore a body wire while speaking with Rekasie at Tubridy’s place of employment. CONSTITUTIONAL RIGHTS VIOLATED? Based on these intercepted conversations, law enforcement officials obtained a search warrant allowing them to seize and search Rekasie’s luggage while he disembarked from an airplane flight. The search uncovered 10 ounces of cocaine and Rekasie and Rizzo were charged with various drug related crimes. Both defendants argued that the evidence leading to the criminal charges should have been excluded because the interceptions constituted a violation of their constitutional rights. The core issue came down to whether Rekasie and Rizzo had a reasonable expectation of privacy in the conversations such that a probable cause determination was necessary before law enforcement officials could intercept the conversations. THE MAJORITY: NO REASONABLE EXPECTATION OF PRIVACY The decision of the majority of the Pennsylvania Supreme Court, authored by Justice Cappy, found no reasonable expectation of privacy in phone conversations because they are “readily subject to numerous means of intrusion at the other end of the call, all without the knowledge of the individual on the call.” Indeed, according to the majority, “extension telephones and speakerphones render it impossible for one to objectively and reasonably expect that he or she will be free from intrusion.” The majority reasoned that “while society may certainly recognize as reasonable a privacy expectation in a conversation carried on face-to-face within one’s home, we are convinced society would find that an expectation of privacy in a telephone conversation with another, in which an individual has no reason to assume the conversation is not being simultaneously listened to by a third party, is not objectively reasonable.” Applying this standard, the majority concluded that while Rekasie may have had an actual expectation of privacy in his phone conversations with Tubridy, it was not one that society would consider reasonable. This columnist suspects that most people believe that their phone calls are private and are not being monitored unless they are specifically so informed. And not at all surprisingly, two dissenting opinions take the majority seriously to task. THE DISSENT: EVISCERATING THE RIGHT TO PRIVACY Mincing no words at the outset, the dissenting opinion by Justice Zappala declared: “by holding that we have no expectation of privacy in confidential messages and conversations transmitted from our telephones, [the majority] has placed the freedom of every citizen into the hands of law enforcement authorities.” Indeed, “the majority has authorized the government to seize our words as spoken to another on a telephone in our own homes, requiring nothing more than a willing participant to place the call.” Taking the majority’s decision to its logical conclusion, Zappala found that nothing could prevent the government from tapping “any individual’s telephone line for any reason,” calling such a result “preposterous.” Taking issue with the majority’s emphasis on technology in its opinion, Zappala stated that expectations of privacy in phone conversations are not eviscerated simply because of the existence of speaker phones and extension lines. “Our right to privacy does not rise and fall with technology, but rather is grounded in our state constitution, which has afforded the right to privacy the utmost protection,” wrote Zappala. Looking ahead with concern, he also noted that “the future holds more subtle and effective means of invading privacy than we have ever imagined,” and concluded that “rather than relinquish our privacy rights in the face of modern innovation, we should fiercely protect them.” Justice Nigro followed with his own dissent that attacked the majority decision. According to Nigro, under the majority’s rationale, “it is only a matter of time before there is no privacy anywhere or in anything.” In his view, the constantly expanding ways in which law enforcement officials can “intrude upon our private affairs calls for heightened, rather than diminished, protection of our constitutional rights.” And he properly concluded that requiring law enforcement officials to obtain a judicial determination of probable cause prior to intercepting telephone conversations is not so heavy a burden “as to outweigh a citizen’s fundamental constitutional right to be free from such intrusion.” HEIGHTENED PROTECTION OF PRIVACY NECESSARY IN TECH AGE Hopefully, the majority decision of the sharply split Pennsylvania Supreme Court in this case will not be the first of a trend of cases in this direction. People do not give up all of their privacy rights simply because the technological age is upon us. If ever there was a time, this is exactly the time to protect privacy. Eric J. Sinrod is a partner in the San Francisco office of Duane Morris, where he focuses on technology and litigation matters. His Web site is sinrodlaw.com and his firm’s site is Duane Morris.Mr. Sinrod may be reached by e-mail at [email protected]

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