Editor's Note: This is the first in a two-part series.

Leonard Deutchman

In Commonwealth v. Mason, No. 1091 M.D.A. 2018 (Super. Ct. 3/7/19), a nonprecedential decision, the Pennsylvania Superior Court ruled that a criminal defendant's videotaped actions as a nanny in her employer's home were not subject to the Wiretapping and Electronic Surveillance Control Act (the Wiretap Act), 18 Pa.C.S.A. Sections 5701-5782, but that her oral communications, as well as sounds, which the court describes as "purported sounds of the defendant shoving or hitting a child," were protected by the Wiretap Act. A concurring and dissenting opinion agreed with the Superior Court's ruling as it pertained to videotaped actions but disagreed that any of the oral communications or sounds were protected by the Wiretap Act. On Sept. 10, the Pennsylvania Supreme Court granted allocator to consider two issues, as stated by the prosecutors: "Whether a babysitter has a reasonable expectation of privacy in the bedroom of a child she is caring for? Whether the sounds resulting from a child being forcibly thrown into a crib and being beaten by the defendant constitute 'oral communications' or 'evidence derived therefrom' under the Pennsylvania wiretap statute?"

In this month's column, I shall use Mason to discuss whether living in the digital world alters or shapes in any way our reasonable expectations of privacy.

The Facts

In Mason, the defendant was hired by the father of six children to work as a nanny, principally in the family's home. About a month into the defendant's tenure, the father's 3-year-old son told him that the defendant had been striking the other children and was "thumbing" him in the face. The father testified that occasionally he saw marks on his son's face and a split lip on his 2-year-old daughter, and that his other children were uncomfortable around the defendant, all of which seemed to the father to corroborate his son's account. The father confronted the defendant about his children's injuries and was unsatisfied with her denials. Approximately two months later, after he spoke to his son about the defendant, the father installed a hidden audio and video recording device (often referred to generically as a "nanny cam") in the children's bedroom without informing the defendant. The nanny cam captured audio and video footage of the defendant yelling at one of the young children before shoving her into a crib where the defendant struck the child several times. The father turned over the recording of this incident to the police. The commonwealth charged the defendant with aggravated assault, simple assault and child endangerment.

The Decisions of the Courts

Upon the defendant's motion, the trial court excluded the video recorded by the nanny cam. The commonwealth appealed, and the Superior Court held that, under Pennsylvania's Wiretap Act, which differs from federal law (as well as the law of many other states) in that all interceptions must have the consent of all parties and not just one party, the video was admissible, but the nanny cam's recording of the defendant yelling, as well as the noises consistent with those made if the children were thrown into objects or struck by the defendant, was not. As for the video, the court reasoned that while Section 5721 of Pennsylvania's Wiretap Act allows any "aggrieved party in a court proceeding" to "move to exclude the contents of any wire, electronic or oral communication, or evidence derived therefrom" if said communication was improperly intercepted, the video of the defendant's action was not an interception of a communication and so could not be suppressed under the Wiretap Act. The court further reasoned that the defendant's yelling, however, was an oral communication, and so was properly suppressed. Finally, the court held that the aforementioned noises was "evidence derived" from the improper interception of the defendant's yelling, and so was properly suppressed.

President Judge Jack Anthony Panella of the Pennsylvania Superior Court, one of the three members of the panel issuing the court's opinion, concurred with the court's opinion as to the admissibility of the video but disagreed as to the inadmissibility of the defendant's yelling and the aforementioned noises. Panella noted that 18 Pa.C.S.A. Section 5704 (17) of the Wiretap Act permitted any "victim, witness or private detective licensed under … The Private Detective Act of 1953, to intercept the contents of any wire, electronic or oral communication, if that person is under a reasonable suspicion that the intercepted party is committing, about to commit or has committed a crime of violence and there is reason to believe that evidence of the crime of violence may be obtained from the interception." Panella reasoned that, "based on the unexplained bruising, 'thumbing,' split lip, and other injuries to" the father's children while they were in the charge of the defendant, the father "had ample, objective reasons to believe" that the defendant "was committing, had committed or was about to commit a crime of violence, aggravated assault." Panella noted that he was "particularly mindful that any of the enumerated acts, inflicted on a small child of 2 or 3, including the throwing of a child into a playpen, and repeated hitting, could easily cause injuries that might prove serious, permanent or even fatal."

Moreover, Panella took issue with the court's assumption that the defendant had a reasonable expectation of privacy in the father's and children's home, citing to Commonwealth v. Peterson, 636 A.2d 615, 617 (Pa. 1993) (finding no reasonable expectation of privacy in living area that the defendant did not establish was his home) and Commonwealth v. Cruz, 166 A.3d 1249 (Pa.Super. 2017) (finding the appellant failed to demonstrate a reasonable expectation of privacy while he was in the bathroom of his employer). Panella reasoned that: under Pennsylvania's Wiretap Act (as well as the federal act), to have a court suppress evidence for a violation of the act, the defendant would have to establish that she possessed a reasonable expectation of privacy in the location where that interception took place (whether it was a physical location where a person was speaking, a telephone into which the person was speaking, or a virtual location where the person was sending, receiving, storing, etc. digital communications); the defendant was simply an employee, and there was no evidence of record establishing that she had been given any access to the home other than to discharge her duties as an employee; and, such access would be insufficient to establish that she possessed a reasonable expectation of privacy in the home, and so insufficient to show that any right of privacy under the act was violated by the nanny cam's recording of physical actions or any of the aforementioned noises, as well as its interception of defendant's yelling.       

The Wiretap Act in the Digital Age

Mason presents yet another example of the judiciary trying to puzzle its way through the digital revolution and other "geeky" things such as the Wiretap Act by bending the pieces to make them fit without asking whether those pieces are all parts of the same puzzle. The simple fact is that, before determining whether the father in Mason went about "intercepting" the defendant in the proper way under Pennsylvania's Wiretap Act, the trial court should first have asked whether the defendant, employed by the father to look after his young children, had a reasonable expectation that her actions, the sounds created by her actions, and her words, all created when she took care of those children in the father's home, would be protected by a right of privacy from the father. When the issue is stated in those terms, the resolution of that issue seems so obvious: of course she did not.

The more interesting question may be why here, as well as in other matters (which will be discussed in part two of this article), the initial impulse seems to be to rush to plug the situation into the Wiretap Act. In next week's article, I will hazard my answer to that question.

Leonard Deutchman is a legal consultant retired from one of the nation's largest e-discovery providers, KLDiscovery, where he was vice president, Legal. Before joining KLDiscovery, he was a chief assistant district attorney at the Philadelphia District Attorney's Office, where he founded the Cyber Crime Unit and conducted and oversaw hundreds of long-term investigations involving cyber crime, fraud, drug trafficking and other offenses. Contact him at [email protected].