Telecom/1996-04-telecom-walnutcreek.iso/caller-id/legal-decision

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file in archives as 'caller-id-legal-decision'

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From: "Michael H. Riddle" <[e-mail]>
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Subject: Re:  Caller ID in PA
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Patrick:

This de decision should be following.  Hope it does someone some good.

Mike

58 U.S.L.W. 2715

NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION IN THE PERMANENT LAW
       REPORTS. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL.

                David M. BARASCH, Consumer Advocate, Petitioner
            v. PENNSYLVANIA PUBLIC UTILITY COMMISSION, Respondent.
   PENNSYLVANIA COALITION AGAINST DOMESTIC VIOLENCE and Mary Jane Isenberg,
                                 Petitioners,
            v. PENNSYLVANIA PUBLIC UTILITY COMMISSION, Respondent.
     Barry STEINHARDT, The American Civil Liberties Union of Pennsylvania,
                                  Petitioners
                                      v.
              PENNSYLVANIA PUBLIC UTILITY COMMISSION, Respondent.
 CONSUMER EDUCATION AND PROTECTIVE ASSOCIATION and Carol Walton, Petitioners,
                                      v.
              PENNSYLVANIA PUBLIC UTILITY COMMISSION, Respondent.
          2270 C.D.1989, 2268 C.D.1989, 2324 C.D.1989, 2371 C.D.1989.
                      Commonwealth Court of Pennsylvania.
                             Argued Feb. 7, 1990.
                             Decided May 30, 1990.

 Before CRUMLISH, JR., P.J., and CRAIG, McGINLEY, SMITH, and PELLEGRINI, Jj.

 SMITH

 This matter comes before the Court on a petition for review of the
November 9, 1989 order entered by the Pennsylvania Public Utility Commission
(Commission) which rejected the Recommended Decision of Administrative Law
Judge Michael Schnierle (ALJ) and approved the use of a customer service
reintroduced by Bell of Pennsylvania (Bell) [FN1] identified as Caller*ID.
This service would permit customers to identify the telephone number from which
a call is being made to the customer and is to be offered with limited blocking
for private, nonprofit, tax-exempt domestic violence intervention agencies;
home telephones of staff members of such agencies whose personal safety may be
at risk if blocking is not provided and who are certified to require blocking
service by the agency head;  federal, state and local law enforcement
agencies;  and persons for whom a duly authorized representative of federal,
state and local law enforcement agencies have certified a need for blocking to
mitigate the risk of personal injury.
 The Commission concluded that by implementing Caller*ID, lives can be saved;
annoying, harassing, abusive, obscene and terroristic telephone calls can be
curtailed;  false bomb threats to public schools, false fire alarms and other
harassing and life threatening prank calls may be eliminated or reduced;  and
residential callers will have their privacy better safeguarded.  Petitioners
filed complaints before the Commission against the proposed Caller*ID service.
On December 29, 1989, this Court granted Petitioners' joint application for
partial stay of the Commission order and directed that Caller*ID be offered
only to emergency service providers pending final disposition of Petitioners'
appeal.
 Multiple issues are presented for review, including questions as to whether
the use of Caller*ID without a blocking mechanism constitutes a violation of
the Pennsylvania Wiretapping and Electronic Surveillance Control Act (Wiretap
Act); [FN2] whether authorization of Caller*ID by the Commission without a
blocking mechanism constitutes a violation of privacy rights protected by the
Pennsylvania and U. S. Constitutions;  whether the Commission's order requiring
limited blocking violates due process and is unlawfully discriminatory where
the certification procedure ordered by the Commission lacks procedural
safeguards;  and finally, whether the Commission's order is supported by
substantial evidence of record.  The scope of review in this matter is limited
to determining whether or not the Commission violated any constitutional
rights, committed an error of law, or made findings which are not supported by
substantial evidence.  Bell Telephone Co. of Pennsylvania v. Pennsylvania
Public Utility Commission, 83 Pa. Commonwealth Ct. 331, 478 A.2d 921 (1984),
appeal dismissed as improvidently granted, 518 Pa. 76, 541 A.2d 314 (1988);  2
Pa. C.S. s 704 (Supp.1989).
                                      I.
 Bell filed its revision to Tariff Pa. PUC No. 1 on June 18, 1989 in which Bell
proposed new services to its tariff.  The filing by Bell proposed to merge
existing Customer Calling Service and Customer Local Area Signalling Service
tariffs into a unified tariff labeled Bell Atlantic I.Q. Services Family, or
services sold primarily to the residential and small business market.  ALJ
Recommended Decision (R. Decision), pp. 2, 9. [FN3] Included in this filing is
the following description of Caller*ID:
  This service allows a customer to receive the calling telephone number
for calls placed to the customer.  The calling telephone number will be
forwarded from the terminating central office to a customer provided telephone
number display device attached to the customer's telephone line.  The calling
telephone number will be delivered during the first silent interval of
ringing.  The telephone numbers which will be forwarded to the customer will
include telephone numbers associated with private telephone number service and
non-listed telephone number service, as described elsewhere in this tariff.
For calls originating from a line within a multi-line hunting of four-party
service, only the 'main' or 'pilot' telephone number will be delivered.  A
message indicating the unavailability of a calling telephone number will be
forwarded if the call originates from a telephone service which is not located
in an appropriately equipped office.  Caller* I.D. is available to individual
line customers by monthly subscription, which provides unlimited use of the
service.
 Commission Order, p. 2. Caller*ID would not permit customers to identify the
telephone number for calls being made from a pay telephone, by credit card, or
by operator assistance.
 On September 22, 1989, the ALJ issued his Recommended Decision finding that
Caller*ID was not in the public interest unless Bell provided a "per-call"
blocking option which is already built into the system.  Bell's proposal did
not include the blocking option recommended by the ALJ which would permit
customers to block transmission of their telephone numbers prior to placing a
call.  The ALJ determined that Caller*ID was a "trap and trace device" as
defined by the Wiretap Act and that only by offering the blocking mechanism
could Caller*ID become lawful under that statute.
 The Commission entered its order on November 9, 1989 rejecting the ALJ's
Recommended Decision and permitting Bell to provide Caller*ID to its customers,
but with the added requirement that Bell provide free subscription or per-call
blocking at the customers' discretion for (a) private, non-profit, tax-exempt,
domestic violence intervention agencies;  (b) home telephones of staff members
of such agencies whose personal safety may be at risk although such individuals
must be certified by the head of the agency and re-certified annually;  (c)
federal, state and local law enforcement agencies;  and (d) individuals for
whom a duly authorized representative of a federal, state or local law
enforcement agency has certified a need for blocking to reduce the risk of
personal injury.  Such individuals must also be recertified annually.  The
Commission did not order that blocking be made available for any other
individuals.  Bell filed a new tariff on November 18, 1989 in compliance with
the Commission's order, and this tariff was approved by the Commission on
November 30, 1989.
                                      II.
 Initially, Petitioners argue that Caller*ID violates Section 5771(a) of the
Wiretap Act, 18 Pa. C.S. s 5771(a), which states as follows:
  (a) General Rule.--Except as provided in this section, no person may
install or use a pen register or a trap and trace device without first
obtaining a court order under section 5773 (relating to issuance of an order
for a pen register or a trap and trace device).
 Section 5702, 18 Pa. C.S. s 5702, defines a trap and trace device as:
  [a] device which captures the incoming electronic or other impulses which
identify the originating number of an instrument or device from which a wire or
electronic communication was transmitted.
 The Wiretap Act does however except certain forms of transmission from its
provisions:
  (b) Exception.--The prohibition of subsection (a) does not apply with respect
to the use of a pen register or a trap and trace device by a provider of
electronic or wire communication service:
  (1) relating to the operation, maintenance and testing of a wire or
electronic communication service or to the protection of the rights or property
of the provider, or to the protection of users of the service from abuse of
service or unlawful use of service;  or
  (2) to record the fact that a wire or electronic communication was initiated
or completed in order to protect the provider, another provider furnishing
service toward the completion of the wire communication or a user of the
service from fraudulent, unlawful or abusive use of service, or with the
consent of the user of the service.
 18 Pa. C.S. s 5771(b).
 An historical perspective upon enactment of Pennsylvania's Wiretap Act will be
useful for this discussion.  The initial history of anti-wiretapping
legislation is described in part by the Supreme Court in Commonwealth v.
Murray, 423 Pa. 37, 43, 223 A.2d 102, 105 (1966), and its observations are
illuminating:
  When the Pennsylvania [anti-wiretapping] Act passed the state Senate, the
prohibition read:  'No person shall intercept a communication by telephone or
telegraph without permission of one of the parties.'  ... However, this
restriction to the consent of only one party was decisively rejected in the
House by a vote of 128 to 61.  The bill was then amended to provide for the
consent of all parties to the communication before the interception could be
defended.  [Emphasis in original.]
 Thus, enactment of the Wiretap Act, most recently amended October 21, 1988,
was intended to develop a means for the prohibition of nonconsensual
interception of wire, oral or electronic communication except where authorized
by the statute.  See Commonwealth v. Melilli, 521 Pa. 405, 555 A.2d 1254
(1989).  Dissenting Commissioner Joseph Rhodes, Jr., a former legislator who in
1977 chaired the House Judiciary Sub-Committee on Crime and Corrections and
jointly introduced the Wiretap Act, indicated that the fundamental purpose
behind enactment of the legislation was to minimize interceptions of telephone
conversations and numbers.  Commission Dissenting Opinion, pp. 4-6.  Moreover,
the Wiretap Act prohibits even a private individual from recording his or her
own telephone conversation unless that individual has the consent of all
parties to the conversation.  Commonwealth v. Jung, 366 Pa. Superior Ct. 438,
531 A.2d 498 (1987).
 Further, the General Assembly has provided protection to telephone
numbers through enactment of the Wiretap Act by prohibiting the use of
interception devices unless probable cause exists.  18 Pa. C.S. s 5773.  In
Commonwealth v. Beauford, 327 Pa. Superior ct. 253, 475 A.2d 783 (1984), appeal
dismissed as improvidently granted, 508 Pa. 319, 496 A.2d 1143 (1985), although
involving the use of pen registers and dialed number recorders by law
enforcement officials, the Supreme Court unequivocally stated that telephone
numbers are to be afforded protection.  In Melilli, the Supreme Court
reaffirmed its position in Beauford:
  In Beauford, the Superior Court intended to equate telephone numbers with
other forms of telephone communication which are regarded as private.
Telephone activities are largely of one piece, and efforts to create
distinctions between numbers and conversational content are constitutionally
untenable in our view.
 Melilli, 521 Pa. at 414, 555 A.2d at 1259.
 Petitioners argue that Caller*ID meets the definition of a trap and trace
device prohibited by the Wiretap Act which clearly provides that use of a trap
and trace device may only be conducted by an electronic service provider and
not by individual customers to whom Bell wishes to offer this new class of
service.  They also invoke the general provision of the Wiretap Act prohibiting
the interception or disclosure of electronic communications.  18 Pa. C.S. s
5703.  Bell's response is that Caller*ID does not constitute a trap and trace
device nor an unlawful interception of electronic communications and further
that the Wiretap Act is a criminal statute and must be narrowly construed.  By
applying this strict standard, according to Bell, it becomes apparent that the
Wiretap Act does not prohibit the use of Caller*ID.  Bell also asserts that the
Wiretap Act applies only to third party interception and is designed to
regulate surreptitious electronic surveillance of citizens by governmental
officials and not to prohibit such surveillance by private individuals, and as
such, no legislative prohibition exists against Caller*ID which Bell suggests
is nothing more than routine telephone service offered by Bell in the course of
its doing business.  Bell's interpretation of the Wiretap Act is simply
incorrect inasmuch as unlawful interception can occur in the use of Caller*ID
and private individuals may be prosecuted for violation of any of the Wiretap
Act's provisions.
 The only exemption applicable here to use of a trap and trace device concerns
use by an electronic service provider, and Section 5771(b) sets forth those
instances in which a trap and trace can be conducted.  Bell argues, however,
that the Wiretap Act does not apply to use of a trap and trace device by a
provider of electronic or wire communication service where consent of the user
of the service is obtained.  Followed to its logical conclusion, Bell would
contend and have this Court believe that a Caller*ID subscriber is the user of
the service and consents to use of a trap and trace device by subscribing to
Caller*ID.  This argument must fail when one considers that "user" includes
"any person or entity" who uses the telephone network and that a contrary and
reasonable interpretation of that term could also be construed as the calling
party rather than the Caller*ID subscriber.  18 Pa. C.S. s 5702.  Hence, Bell's
consent analysis fails to support an exception to the Wiretap Act.
 Neither the Caller*ID device nor the data captured by the device is
controlled or maintained by Bell but rather by the customer subscriber, clearly
violating the trap and trace device prohibition.  In concluding that Caller*ID
violates the Wiretap Act, the ALJ correctly determined as follows:
  [T]he Legislature has specifically excluded from the term 'pen register'
devices used by the telephone company or by the customer to record outgoing
numbers for billing or cost accounting purposes in the ordinary course of
business.  No similar exclusion is appended to the definition of 'trap and
trace device.'  Had the Legislature intended the term 'trap and trace device'
to exclude a device, such as Caller*ID, which is used in conjunction with a
service provided by the telephone company as an ordinary tariffed service, it
would have added such an exclusion.  The absence of such an exclusion to the
term 'trap and trace device, I coupled with the existence of a specific
exclusion to the term 'pen register,' suggests that the term 'trap and trace
device' must be interpreted as including devices operated by the telephone
subscriber, such as Caller*ID.
  By analogy, Bell's argument that a Caller*ID device should not be considered
a 'trap and trace device' because it ordinarily is used by a telephone
subscriber in connection with a service furnished by the phone company is
without merit.
  Finally, if a Caller*ID device is attached surreptitiously to the phone line
of a Caller*ID subscriber, the person attaching the Caller*ID device can
intercept the calling party numbers without the knowledge of the
subscriber....  Thus, a Caller*ID device can be used to implement a 'trap and
trace' on a Caller*ID subscriber's phone line.
 ALJ R. Decision, pp. 38-41.  Moreover, the Attorney General of Pennsylvania
has agreed in his brief that Caller*ID is a trap and trace device as defined by
the Wiretap Act, although contending that it is the service which falls within
the definition and not the display unit purchased by the consumer.  Brief of
Amicus Curiae, Attorney General of Pennsylvania, p. 4.
 Petitioners suggest, however, that Caller*ID may satisfy the Wiretap Act if
all parties to the interception consent to its use and that blocking would
permit callers to consent to transmission of their telephone number.  Section
5704 of the Wiretap Act, 18 Pa. C.S. s 5704, provides that it shall not be
unlawful for:
  (4) [a] person, to intercept a wire, electronic or oral communication, where
all parties to the communication have given prior consent to such interception.
 Thus, where making a call without blocking the calling number transmission,
callers would provide implied consent for transmission of their telephone
number information.  For reasons discussed later in this opinion, Petitioners'
suggestion is untenable.
                                      II
 Petitioners next argue that providing Caller*ID without making available a
blocking mechanism to the general public violates the privacy protections
conferred by the Pennsylvania Constitution and that Bell's contention that
state constitutional protections do not apply here is without legal
foundation. [FN4]  The ALJ, while not finding a violation of Article I,
sections 1 and 8 of the Pennsylvania constitution, advanced the view that
Caller*ID neither enhances nor threatens privacy rights "but merely increases
the cost of privacy."  ALJ R. Decision, p. 73.
 Bell argues that no constitutional violations occur through the offering
of Caller*ID and moreover that the U.S. constitution requires state action
before a party may invoke constitutional rights, citing Jackson v. Metropolitan
Edison Co., 348 F.Supp. 954 (M.D. Pa.1972), affirmed, 483 F.2d 754 (3rd
Cir.1973), affirmed, 419 U.S. 345 (1974).  Here, Bell contends that courts do
not recognize a constitutional right to be free from any and all forms of
electronic surveillance, wiretapping or eavesdropping and further that single
party consensual recordings are constitutional, and as Petitioners fail to
establish a property interest in telephone anonymity, their due process
arguments must fail.  Commonwealth v. Blystone, 519 Pa. 450, 549 A.2d 81
(1988), affirmed, --- U.S. ----, 110 S.Ct. 1078 (1990).  Although not waiving
its claim that the constitutional issues were not properly preserved for
review, Bell contends that the right to privacy, if one does exist, is the
right to be left alone from governmental invasions and that if it is possible
for a private citizen to violate another's privacy rights at a constitutional
level, it is the right to be left alone that must be preserved and that
Caller*ID protects that right.
 Petitioners persuasively argue that approval of Caller*ID by the Commission
constitutes state action which violates federal constitutional privacy
protections in that the Commission as a regulatory agency is facilitating
Bell's intrusion into the privacy rights of citizens of this Commonwealth,
thereby making federal constitutional protections applicable to the Commission
action.  Jackson.  See United States v. Westinghouse Electric Corp., 638 F.2d
570 (3rd Cir.1980), for discussion of the balancing test applied in determining
whether a particular government action violated constitutionally protected
privacy rights.
 one cannot refute the fact that Bell has enjoyed an historical monopoly and
virtual domination in the telecommunications area.  U.S. v. American Telephone
and Telegraph Co., 552 F.Supp. 131 (D.D.C.1982), affirmed, 460 U.S. 1001
(1983).  Nor can one likewise challenge the fact that Bell may not offer
Caller*ID to its subscribers without the imprimatur of the Commission.  In
Jackson, the U.S. Supreme Court stated that:
  [i]t may well be that acts of a heavily regulated utility with at least
something of a governmentally protected monopoly will more readily be found to
be 'state' acts than will the acts of an entity lacking these characteristics.
But the inquiry must be whether there is a sufficiently close nexus between the
State and the challenged action of the regulated entity so that the action of
the latter may be fairly treated as that of the State itself ... The true
nature of the State's involvement may not be immediately obvious, and detailed
inquiry may be required in order to determine whether the test is met.
 Id. at 350-51.  Ultimately, in construing what action constitutes state action
for purposes of invoking constitutional prohibitions, courts must be guided by
the following observations:
  Only by sifting facts and weighing circumstances can the nonobvious
involvement of the State in private conduct be attributed its true
significance.... owing to the very 'largeness, of government, a multitude of
relationships might appear to some to fall within the [Fourteenth] Amendment's
embrace, but that, it must be remembered, can be determined only in the
framework of the peculiar facts or circumstances present.
 Burton v. Wilmington Parking Authority, 365 U.S. 715, 722, 72526 (1961).
Courts are further cautioned that in making the particularized inquiry, focus
should not be on whether a single fact or relationship demonstrates a
sufficient degree of state action but whether considering the aggregate of all
pertinent factors, a finding of state responsibility is required.  Jackson;
Moose Lodge No. 107 v. Irvis, 407 U.S. 163 (1972).  See also National
Collegiate Athletic Ass'n v. Tarkanian, 488 U.S. 179 (1988), citing Jackson and
Burton, for a general discussion of what constitutes state action.
 The conclusion is therefore inescapable that, within the framework of the
relevant factual circumstances here, the action taken by the Commission to
approve Bell's amended tariff to allow Caller*ID must be construed as state
action sufficient to justify the application of constitutional prohibitions,
even recognizing the principle that furnishing of utility service is generally
not considered to be a state function.  See Bartholomew v. Foster, 115 Pa.
Commonwealth Ct. 430, 541 A.2d 393 (1988), affirmed, 522 Pa. 489, 563 A.2d
1390 (1989).  Not only did the Commission require extensive investigatory
hearings in selected locations throughout the Commonwealth, but its further
action in ordering limited blocking to certain designated individuals or groups
to prevent harm absent a request by the parties to do so and requiring a
certification process to be implemented by federal, state or local law
enforcement agencies effectively takes this case out of the realm of mere
regulation of private enterprise and transforms the commission's decision into
one of state action.  Hence, an analysis of the aggregate of all relevant
factors here compels a finding that a sufficiently close nexus exists between
the state and the challenged service, thereby creating state responsibility in
the approval of Caller*ID.  See generally Smith, We've Got Your Number!  (Is It
Constitutional to Give It Out?:  Call Identification Technology and The Right
to Informational Privacy), 37 UCLA L.Rev. 145 (1989).  Finding the necessary
state action component, this Court shall review Petitioners' constitutional
challenges.
 In Denoncourt v. Commonwealth, State Ethics Commission, 504 Pa. 191, 470 A.2d
945 (1983), the Supreme Court held that an independent constitutional right of
privacy exists in the Pennsylvania Constitution arising under Article I,
sections 1 and 8. In the context of unauthorized distribution or seizure of an
individual's telephone number, the Superior Court stated in Beauford:
  [W]e are convinced that a person picking up a telephone in his home or
office fully expects that the number he is about to dial will remain as private
as the contents of the communication he is about to have.  That number provides
a strong, sometimes conclusive inference as to whom is being called,
unquestionably a private matter.  The caller certainly evidences no intention
to shed his veil of privacy merely because he chooses to use the telephone to
make private contacts.  In modern-day America the telephone call is a nearly
indispensable tool used to conduct the widest range of business, government,
political, social, and personal affairs.
 Id. at 265, 475 A.2d at 789.  The foregoing leaves little doubt that an
individual has a right to privacy in the use of his or her telephone and that
unauthorized seizure or disclosure of one's telephone number will not be
permitted by the courts of this Commonwealth. [FN5]  Accord Melilli where the
Supreme Court in reaffirming principles espoused in Beauford stated that
efforts to make distinctions between telephone numbers and conversational
content are constitutionally untenable in that Court's view.
 The ALJ found that the private Bell customer would have less control over the
distribution of his or her telephone number and that many private customers
testified that Caller*ID violated their privacy expectations in maintaining
private telephone numbers.  The ALJ also found that Caller*ID potentially
increases telemarketing and other sales c# 1ls;  threatens an individual's
ability to receive or make contact with groups and other organizations;
presents a threat to battered women and those attempting to assist battered
women;  jeopardizes various other social, therapeutic and community groups in
their contacts with clients;  and threatens law enforcement officials and their
informants and tipsters.  ALJ R. Decision, pp. 88-96.  Considering these
findings, which are supported by credible evidence of record, Caller*ID poses a
substantial invasion of the personal privacy rights of the citizens of this
Commonwealth.
 An issue which must therefore be addressed is whether Caller*ID with blocking
is constitutionally permissible in view of the privacy intrusions caused by
such service.  Bell advocates that blockable Caller*ID is unfeasible and that
anyone wishing to maintain anonymity and avoid transmission of his or her
telephone number may do so by making pay telephone calls at the current twenty-
five cents per call;  credit card calls at the current forty cents per call;
or operator assisted calls currently charged at one dollar twenty cents per
call.  Such suggestion rises to absurdity when considering the inconveniences
and added costs imposed upon consumers to protect their privacy and the nominal
advantages to accrue from Caller*ID when balanced against the grave intrusions
of privacy threatened against the people of this Commonwealth. [FN6]
 Notwithstanding the Commission's limited blocking order or whether wholesale
blocking was made available by Bell to the general public either free or for
charge, the potential for privacy violations still exists for that undefinable
segment of the general public who lacks notice of a blocking option;  cannot
afford the additional expense if blocking were available for a fee;  forgets to
trigger the blocking mechanism in cases of emergency or trauma;  ad infinitum.
 In reviewing the privacy challenges presented to Caller*ID, this Court
is guided by further observations of the Supreme Court in Murray:
  It is clear ... that the privacy of the telephoning public is the interest
which must first arrest one's attention in dealing with this problem.  A mere
passing acquaintance with the daily newspaper suffices to substantiate the
existence of a widely felt and insidious threat to individual privacy posed,
not only by technological advances, but also by the evolution of contemporary
social structures.  A jealous regard for individual privacy is a judicial
tradition of distinguished origin, buttressed in many areas by the imperative
mandate of constitutional guarantees.  Protection of individual privacy,
however, appears frequently to reduce the methods available to law enforcement
agencies in the detection and prosecution of crime.  Few would deny that in
this country today concern with the growth of criminal activity is of the same
order of magnitude as the concern with the erosion of individual privacy.
 Id. at 57, 223 A.2d at 112-113.  Hence, consumers of telephone service should
not suffer an invasion, erosion or deprivation of their privacy rights to
protect the unascertainable number of individuals or groups who receive
nuisance, obscene or annoying telephone calls which can already be traced or
otherwise dealt with by existing services provided by Bell. Guided by the wise
observations in Murray, this Court will unhesitatingly uphold the judicial
tradition of "jealous regard for individual privacy."  In so doing, this Court
concludes that Caller*ID, either in its blockable or unblockable format,
violates the privacy rights of the people of this Commonwealth.  In the
framework of a democratic society, the privacy rights concept is much too
fundamental to be compromised or abridged by permitting Caller*ID.
                                      IV
 Next, Petitioners argue that the Commission's order regarding the availability
of a blocking mechanism on a limited basis violates due process.  After
recognizing that certain individuals may require blocking to maintain their
personal safety, the Commission created a certification process to identify
those individuals entitled to blocking which lacks procedural standards or any
provisions for notice, hearing or appeal.  In his opinion and order granting a
partial stay of the Commission's order, President Judge Crumlish stated that
the record is devoid of evidence establishing even the most minimal guidelines
for this certification process.  As such, Petitioners aptly argue that the
certification process which fails to provide for notice to the general public
constitutes arbitrary government action and creates a procedure lacking in due
process protections guaranteed by the Fourth Amendment of the U.S.
Constitution, through the Fourteenth Amendment, and Article I, section 1 of the
Pennsylvania Constitution.
 Fundamental questions remain unresolved by the Commission's order.  Questions
appropriately posed by Dissenting Commissioner Rhodes include whether the
certification process will create an unwanted burden upon law enforcement
agencies;  who will designate the duly authorized law enforcement official;
whether the certification decisions are appealable, and if so, what appeal
procedures are applicable;  who will pay the cost for the certification
process;  who will perform certification in the event a particular law
enforcement agency refuses to perform the certification;  and finally, who
bears the risks in the event an individual denied blocking certification is
subsequently injured as a result of Caller*ID.  Hence, the Commission's order
in this regard is fatally flawed and thus unlawful as it lacks minimal due
process standards.  See Barasch v. Pennsylvania Public Utility Commission, 119
Pa. Commonwealth Ct. 81, 546 A.2d 1296, following reargument, --- Pa.
Commonwealth Ct. ----, 550 A.2d 257 (1988), appeal denied, --- Pa. ----, 567
A.2d 655 (1989).
                                       V
 The blocking remedy was not proposed by any of the parties to the
proceedings nor by the ALJ and is, according to Petitioners, unsupported by
substantial evidence of record.  The Commission adopted the ALJ findings and
did not require additional evidence but concluded that the limited blocking to
be offered to select individuals and groups would protect callers from any harm
which might occur as a result of Caller*ID.  Further, the Commission order
neither refers to specific evidence to support its decision to allow blocking
to selected individuals and groups nor adequately explains the basis for its
rejection of the Ali's analysis.
 Bell initially contends that all of the benefits it predicts from Caller*ID
have been borne out in New Jersey relying upon testimony by various individuals
that anonymous telephone calls, false alarms, and other annoying telephone
calls have been reduced. [FN7]  Evidence was presented by Bell to demonstrate
the benefits of Caller*ID which presumably supports the conclusion that
Caller*ID would discourage or deter criminal and annoying behavior.  Bell's
witnesses purported to show that a majority of Pennsylvania residents will
benefit from Caller*ID and that it will reduce substantially the number of
obscene and annoying telephone calls made to residents within this
Commonwealth.
 It is conceivable that Caller*ID is just as likely to encourage criminal or
annoying behavior as it would to discourage such conduct particularly in those
instances where a prank or obscene caller subscribes to Caller*ID and
consequently has the capacity to develop a list of telephone numbers in his or
her data base for use in making such calls.  (Caller*ID has the capacity to
display sixty-four ten digit telephone numbers including area code along with
the date and time of each call.)  Moreover, it is highly unlikely that
criminals plotting serious crime would do so from his or her own home telephone
as a substantial amount of criminal contact occurs through the public
telephone.  To buttress its arguments, Bell cites testimony regarding assaults
and murders of pizza delivery persons;  bomb threats to hospitals;  drunken or
drugged persons who assault hospital staff;  evidence of a baby's life being
saved in New Jersey because of Caller*ID;  and false fire and other emergency
reports which utilize the resources of emergency personnel and reduce their
ability to respond to real emergencies.  Yet, none of the parties recognize
that if blocking were made available to the general public as advocated, the
reasonable and anticipated result is that those who are inclined to make
anonymous calls will secure the blocking feature to avoid transmission of the
caller's telephone number, effectively emasculating the purposes of and intent
behind Caller*ID.
 Bell contends that its existing services, i.e., Call*Trace and Call*Block are
insufficient to provide the type of service which Caller*ID is designed to
offer subscribers, in that the other services do not provide the immediate
display of a telephone number in the event of an abusive call.  Further, Bell
argues that the only deterrent to abuse calling is Caller*ID;  and any
individual who wishes to retain anonymity may simply make operator assisted
calls, credit card calls or coin operated telephone calls--methods of calling
which can also justifiably apply to those obscene and annoying crank callers or
other criminals whose contact Caller*ID is designed to minimize or deter.
Petitioners' arguments here must be sustained as well.  The Commission took no
additional evidence on the issue of restricted blocking and sua sponte imposed
limited blocking for those designated individuals and groups without the
benefit of testimony or other evidence which may have demonstrated a different
result.
 Viewing the record in the context of this Court's limited scope of
review, the conclusion mandated here is that the Commission erred in rejecting
the ALJ's determination that Caller*ID violates the Wiretap Act and further
that the Commission's order approving Caller*ID violates constitutional privacy
and due process rights and is not supported by substantial evidence of record.
[FN8]
 The decision in this case was reached prior to the retirement of former
President Judge Crumlish.
 Judge Palladino did not participate in the decision in this case.
                                   0 R D E R
 AND NOW, this 30th day of May 1990, the order of the Pennsylvania Public
Utility Commission is reversed.

 CONCURRING AND DISSENTING OPINION BY JUDGE PELLEGRINI
 Caller*ID is a new type of phone service that has never been previously
available to Pennsylvania phone subscribers.  For the first time, Bell of
Pennsylvania (Bell) proposes to universally offer a service that provides more
to its subscribers than dial tone service for the transmission of voice and
data;  a service that provides information and not merely transmits it.
Caller*ID is everyone's introduction, for better or worse, to interactive
entrepreneurial telecommunications.
 To determine whether Caller*ID is a service that will be better or worse for
phone subscribers, the Pennsylvania Public Utility Commission (PUC) attempted
to balance the competing interests of Bell's subscribers.  Some subscribers say
Caller*ID is needed to stop harassing and threatening phone calls;  others say
it will present a threat to battered and threatened spouses and children whose
location will become known through Caller*ID.  Even others say it will advance
commercial interests allowing them to be of better service to their customers;
and others counter this too by saying it will constitute an invasion of
privacy.
 No matter the propriety of the outcome of the PUC's application of this
balancing test, the result must still be in accord with the laws and
Constitution of Pennsylvania, which embody fundamental policy and social
interests.  I concur with the well-reasoned majority opinion that Caller*ID
violates the Pennsylvania Wiretapping and Electronic Surveillance Control Act,
18 Pa. C.S. ss 5701-5781 (Wiretap Act) and that Call Blocking does not offer a
method of curing that violation.  However, I dissent to the majority's making a
finding that Caller*ID violates Article I, Sections 1 and 8 of the Pennsylvania
Constitution as constituting an invasion of privacy.
                                      I.
 I agree with the majority that Caller*ID violates the Wiretap Act. The
majority holds that Caller*ID intercepts an electronic communication through
the means of a "trap and trace" device [FN1] which is prohibited by the Wiretap
Act. I agree with the majority holding for the reasons they set forth as well
as an additional one.
 Bell's main contention is that the Wiretap Act's prohibition against trap and
trace devices does not address phone calls between parties to the communication
but only third-party interception of those communications. [FN2]  They contend
that if any user of the communication agrees to have the phone number "trapped
and traced, " it is permitted.  To examine this argument, it is necessary to
examine the Wiretap Act and its history, especially the 1988 amendments, to see
if Caller*ID is prohibited by the Wiretap Act.
 The "trap and trace" provisions of the Wiretap Act were added in 1988
as a result of a mandate contained in the federal Electronic Communications
Privacy Act of 1986, Act of October 21, 1986, P.L. 99-508, which required the
states to be in compliance with its provisions within two years of its
enactment.  See 18 U.S.C. s 2510.  See also 1988 Pennsylvania Legislative
Journal--House 1685.  Complying with this mandate, the General Assembly passed
the 1988 amendments (Act of October 21, 1988, P.L. 1000) which, in all relevant
aspects, were identical to the federal legislation.
 Both reports issued by the Judiciary Committees of the United States House
(H.R. 99-647) and Senate (S. 99-941) indicated that the purpose behind the
passage of the federal law was to increase privacy protections afforded to
citizens.  As the Senate Report states (p. 5):
  [t]he law must advance with the technology to ensure the continued vitality
of the fourth amendment.  Privacy cannot be left to depend solely on physical
protection, or it will gradually erode as technology advances.  Congress must
act to protect the privacy of our citizens.  If we do not, we will promote the
gradual erosion of this precious right.
 In this area of "pen registers" [FN3] and "trap and trace" devices, the
legislative history is particularly illuminating.  Because the Supreme Court of
the United States has held that "pen registers," Smith v. Maryland, 442 U.S.
735 (1979), and "trap and trace" devices, Rathun v. United States, 355 U.S.
107 (1957), do not violate the Fourth Amendment and could be installed by a law
enforcement agency without a warrant, the Electronic Communications Privacy Act
was passed to extend federal statutory protection to unwarranted intrusion
through the use of these devices.
 The Senate Judiciary Committee stated that the Electronic communications
Privacy Act of 1986, contains "a general prohibition against the installation
or use of a pen register or trap and trace device without a court order,"
Senate Report 99541 at p. 46, unless covered by one of the three exceptions.
The exception that Bell contends that would allow the use of Caller*ID is "with
the consent of the user."  In the context of federal law, Congress did not
intend to prohibit "trap and trace" devices, including Caller*ID, as long as
the called party consents which he or she obviously does when the service is
purchased. [FN4]  This conclusion is in accord with the general federal law and
that of most states that only one party need consent to have a phone
conversation recorded or monitored by one of the parties or to allow a third-
party, including governmental agencies, to record or monitor that conversation.
 Even though Pennsylvania has a nearly identical "trap and trace" provision,
the 1988 Pennsylvania amendments, adopted in compliance with federal law, must
be interpreted together with the underlying Pennsylvania Wiretap Act. In
Pennsylvania, our Wiretap Act is much more protective of individual rights than
the corresponding federal legislation.  Except in limited instances in
Pennsylvania, all party consent is necessary prior to interception and
disclosure of any communication.  Section 5703 of the Wiretap Act, 18 Pa.
C.S. s 5703, expressly prohibits the interception of any wire or oral
communication:
  Except as otherwise provided in this chapter, a person is guilty of a
felony of the third degree if he:
  (1) intentionally intercepts, endeavors to intercept, or procures any other
person to intercept or endeavor to intercept any wire, electronic or oral
communication;
  (2) intentionally discloses or endeavors to disclose to any other person the
contents of any wire, electronic or oral communication, or evidence derived
therefrom, knowing or having reason to know that the information was obtained
through the interception of a wire, electronic or oral communication;  or
  (3) intentionally uses or endeavors to use the contents of any wire,
electronic or oral communication, or evidence derived therefrom, knowing or
having reason to know, that the information was obtained through the
interception of a wire, electronic or oral communication.
 It is only Section 5704(4) that allows monitoring and recording when both
parties consent:
  (4) A person, to intercept a wire, electronic or oral communication, where
all parties to the communication have given prior consent to such interception.
 Pennsylvania courts have also consistently held that the interception of or
recording of a telephone conversation by a private party without the consent of
all of the parties violates the Wiretap Act. See, e.g., Commonwealth v. Jung,
366 Pa. Superior Ct. 438, 531 A.2d 498 (1987);  Zinman v. Unemployment
Compensation Board of Review, 8 Pa. Commonwealth Ct. 649, 305 A.2d 380 (1973).
Consequently, when the 1988 amendments were adopted by the General Assembly,
they were grafted onto a legislative scheme very different and one that is much
more protective of individual rights than federal law.  Even though the
language of the federal law and 1988 amendments to the Wiretap Act are nearly
the same, by not changing the "all party consent rule," it is clear that the
General Assembly meant that any part of the communication, including phone
number identification, should have the consent of all parties prior to it being
trapped and traced.  Consequently, as used in 18 Pa. C.S. s 5771(b), the term
user is all parties to the call, and, consequently, if all parties to the call
do not consent, the Wiretap Act is violated.
 Bell contends that as a result of this holding, it would preclude police
departments from receiving phone numbers of individuals placing phone calls who
may be in distress.  Contrary to this assertion, "enhanced 911" already offers
to those systems on which it has been installed both the phone number and
geographic location, i.e., address where the phone call is entering the
system.  Smith, We've Got Your Number!  (Is It Constitutional to Give It Out?:
Call Identification Technology and The Right to Informational Privacy), 37 UCLA
L.Rev. 145, 209 (1989).  More importantly, this type of "trapping and tracing"
is specifically permitted as an exclusion from the "all party consent rule"
contained in the Wiretap Act. Section 5704(3) provides that it shall not be
unlawful for:
  (3) Police and emergency communications systems to record telephone
communications coming into and going out of the communications system of the
Pennsylvania Emergency Management Agency or a police department, fire
department or county emergency center, if:
  (i) the telephones thereof are limited to the exclusive use of the
communication system for administrative purposes and provided the communication
system employs a periodic warning which indicates to the parties to the
conversation that the call is being recorded;
  (ii) all recordings made pursuant to this clause, all notes made therefrom,
and all transcriptions thereof may be destroyed at any time, unless required
with regard to a pending matter;  and
  (iii) at least one nonrecorded telephone line is made available for public
use at the Pennsylvania Emergency Management Agency and at each police
department, fire department or county emergency center.
 Caller*ID and "enhanced 911," in compliance with the provisions of this
subsection, are permissible when used by public safety agencies.  See also
Commonwealth v. Gullett, 459 Pa. 431, 329 A.2d 513 (1974);  Commonwealth v.
Topa, 269 Pa. Superior Ct. 473, 410 A.2d 354 (1978).
                                      II.
 The Pennsylvania Attorney General's Office of Consumer Advocate (Consumer
Advocate) suggests that Call Blocking, if offered free of charge to all
telephone subscribers, represents an adequate safeguard against impermissible
disclosure of an originating caller's telephone number.  For Call Blocking to
satisfy the "all party consent" requirement, 18 Pa. C.S. s 5704(4), it would be
implied that those who failed to call block gave their consent to have their
call "trapped and traced.  " The Wiretap Act, however, gives no support to the
idea that the privacy rights that the General Assembly was attempting to
protect can be secured by shifting the burden to individuals to protect their
right of privacy.  By providing that "prior consent must be given" and by
listing exceptions to "all party consent, " the General Assembly has.
specifically indicated its intent that the consent to interception of a
transmission cannot be implied.
                                     III.
 While I agree that Caller*ID violates the Pennsylvania Wiretap Act, I dissent
to our reaching the issue of whether Caller*ID constitutes such an invasion of
privacy in violation of Article I, sections 1 and 8 of the Pennsylvania
Constitution. [FN5]
 Our Supreme Court has mandated that when cases comprising both constitutional
and non-constitutional issues arise, the courts of this Commonwealth should not
decide constitutional issues in cases which can properly be decided on non-
constitutional grounds.  See Ballou v. State Ethics Commission, 496 Pa. 127,
436 A.2d 186 (1981).  Likewise, this Court has exercised restraint and
adherence to this admonition.  Friedlander v. Zoning Hearing Board of Sayre
Borough, 119 Pa. Commonwealth Ct. 164, 546 A.2d 755 (1988);  Atlantic-Inland v.
Board of Supervisors of Goeshen Township, 48 Pa. Commonwealth Ct. 397, 410 A.2d
380 (1980).
 Judicial restraint is particularly appropriate to follow in this
matter.  Through the Wiretap Act, the General Assembly has enacted a
comprehensive legislative scheme over the entire area of interception of both
conversations and electronic communications.  The legislature has been
sensitive to the needs of the telecommunications industry as well as being
vigilent in protecting privacy rights of Pennsylvanians.  In a fast moving
technological era, innovation may have benefits to society that in some
instances might outweigh an individual's right to privacy (e.g., "enhanced
911"). [FN6]
 In light of the constant technological advances and the shifting balance that
invariably results, we should not prematurely enunciate a constitutional
prohibition until the General Assembly, as it did here, has an opportunity to
re-establish the balance.  Ultimately, the outcome of the balancing test on
privacy issues will be determined by experience and the consensus that results
from that experience.  Until absolutely forced, we should exercise judicial
restraint and avoid deciding this case on constitutional grounds.
 Having found that Caller*ID is violative of the Wiretap Act and that the PUC's
order in this matter constitutes an error of law requiring its reversal, we
have effectively resolved the controversy between these litigants without
addressing the constitutional question respecting privacy infringement.
Therefore, I must dissent to the majority's extending this Court's disposition
of this matter to the resolution of a constitutional question.
 Accordingly, I concur in Parts I and II and in the result to Parts IV and V,
and dissent as to Part III of the majority's opinion.
 Judge McGinley joins in this concurring and dissenting opinion.

     FN1. References to Bell's arguments throughout this opinion are generally
    considered to be those of Bell and Respondent Commission jointly.

     FN2. 18 Pa. C.S. ss 5701-5781.

     FN3. Within the I.Q. Family is a subgroup of services called CLASS
    Services which include Caller*IQ, Call*Return, Call*Block, and Call*Trace.
    None of the other class services require that the called party know the
    telephone number of the calling party.
    "Call*Return" permits a customer to return the 'Last incoming call without
    knowing who made the call by dialing a particular code and the central
    office equipment then reclaims the calling party's number from memory and
    uses it to initiate call back.
    "Call*Block" allows a customer to create a screening list in the telephone
    company's equipment which can be used to compare calling parties' telephone
    numbers.  If a calling number matches a number on the screening list, the
    call is not completed to the called party.
    "Call*Trace" allows a customer to dial a code to forward the calling
    party's telephone number to the telephone company's Annoyance Call Bureau.
    The code allows the system to take the calling party's number and store it
    in a memory register associated with the telephone line called.  The
    calling party's number is then routed to the Annoyance Call Bureau.
    The monthly subscription rate is $6.50 for Caller*ID;  $2.50 for
    Call*Return;  $5.00 for Call*Block;  and $1.00 per activation or usage rate
    for Call*Trace.  ALJ R. Decision, pp. 1017, 23.

     FN4. Bell contends that Petitioners' constitutional challenges have been
    waived since they failed to file Exceptions to the ALJ decision and to
    raise this issue before the Commission.  The constitutional issues were
    raised before the ALJ and subsequently in Petitioners' Reply Exceptions to
    the commission.  Having been the successful parties before the ALJ,
    Petitioners did not file Exceptions to his decision.  The constitutional
    right to privacy issue has therefore not been waived by Petitioners and
    will be reviewed by this Court.  See Sherwood v. Elgart, 383 Pa. 110, 117
    A.2d 899 (1955);  Burchanowski Tax Case, 32 Pa. Commonwealth Ct. 207, 378
    A.2d 1025 (1977).

     FN5. See also Commonwealth v. Brachbill, 520 Pa. 533, 555 A.2d 82 (1989);
    Commonwealth v. Kean, 382 Pa. Superior Ct. 587, 556 A.2d 374 (1989).

     FN6. Moreover, the ALJ found that other CLASS services provided
    substantial tracing services which effectively rendered Caller*ID
    insignificant.  Where harassing calls occur, Bell is equipped to trace
    calls through other services including Call*Return, Call*Block and
    Call*Trace.  ALJ R. Decision, p. 19.  The Dissenting Commissioner also
    determined that other available services provided by Bell are equipped to
    reduce harassing and obscene telephone calls without any of the statutory
    or constitutional violations inherent in unblockable Caller*ID and that
    because of its capabilities, Call*Trace should be the response to obscene
    and harassing telephone calls.  This position is certainly supported by the
    record, and this Court therefore agrees that existing Bell services are
    equipped to perform the function of reducing harassing, annoying and
    obscene telephone calls.

     FN7. The New Jersey experience, however, is less than reliable as
    Caller*ID has only been available on a permanent basis in New Jersey since
    October 20, 1988.

     FN8. Petitioners also argue that the Commission's order is discriminatory
    in that it establishes three classes of Bell customers and that such
    classification violates the antidiscrimination provisions of the Public
    Utility Code, 66 Pa. C.S. s 1505, as well as constitutional guarantees of
    equal protection.  While Petitioners' arguments may have merit, there is no
    need to address this issue because of the rulings made by this Court today.

     FN1. 18 Pa. C.S. s 5702 defines "trap and trace device" as a device which
    captures the incoming electronic or other impulses which identify the
    originating number of an instrument or device from which the wire of
    electronic communication was transmitted.  See also 18 U.S.C. s 3127.

     FN2. Bell also contends that the provisions of the Wiretap Act are
    inapplicable because Caller*ID is not a "trap and trace" device as defined
    by that Act. In effect, contending that it is irrelevant that Caller*ID
    identifies the originating number, Bell argues that the Caller*ID display
    unit is a 'device incapable of trapping and tracing a phone number.  It is
    nothing but a dumb terminal that receives and displays numbers captured,
    stored and transmitted by Bell equipment which are generated in the
    ordinary course of call routing and switching and those signals which are a
    part of every call.  Consequently, Bell argues that Caller*ID is not a
    "trap and trace" device.
    Nothing in this legislation indicates that the General Assembly intended
    such an interpretation of the Wiretap Act. It is inconceivable that the
    General Assembly would prohibit devices that, while incapable on their own
    to "trap and trace", would be able to provide the same result that it was
    attempting to regulate.  To adopt Bell's suggested interpretation would be
    as if to say burglary is outlawed but receiving stolen property is
    permitted.  It would place telephone customers in the position of violating
    the Wiretap Act by virtue of their non-consensual receipt of the calling
    party's telephone number, making them unwitting accomplices in conduct
    which subverts the law literally at their own expense.  The General
    Assembly, by "trap and trace" device, meant the means used to accomplish
    the identification of the originating phone number, even though it involved
    Bell switching equipment, wires or fiber optic cable to transmit the
    signal, or a Caller*ID display unit, or, for that matter, any method by
    which that result occurs.

     FN3. 18 Pa. C.S. s 5702 defines "pen register" as a device which records
    or decodes electronic or other impulses which identify the numbers dialed
    or otherwise transmitted, with respect to wire communications on the
    telephone line to which the device is attached.  See also 18 U.S.C. s 3127.

     FN4.18 U.S.C. s 3121(b) provides that the prohibition with respect to "pen
    registers" and "trap and trace" devices does not apply:
    (1) relating to the operation, maintenance, and testing of a wire or
    electronic communication service or to the protection of the rights or
    property of such provider, or to the protection of users of that service
    from abuse of service or unlawful use of service;
    (2) to record the fact that a wire or electronic communication was
    initiated or completed in order to protect such provider, another provider
    furnishing service toward the completion of the wire communication, or a
    user of that service, from fraudulent, unlawful or abusive use of service;
    or
    (3) where the consent of the user of that service has been obtained.
    The Pennsylvania exceptions are identical except that the wording of the
    third and operative exclusion is not a separate subsection and is stated
    as "or with the consent of the user."  18 Pa. C.S. s 5771.  I ascribe no
    difference in intent or meaning between the state and federal legislation
    as a result of the difference in language but attribute it merely to
    subscriber's choice."

     FN5. I do not believe that a "state action" analysis is appropriate when
    determining the application of state constitutional protection.  "State
    action" is a pre-requisite to the exercise of federal jurisdiction under
    the Fourteenth Amendment and Section 1983 of the Civil Rights Act to stop
    wrongdoers who are acting under state authority.  National Collegiate
    Athletic Association v. Tarkanian, --- U.S. ----, 109 S.Ct. 454 at 461
    (1988).  Our Supreme Court adopted a similar view in Bartholomew v.
    Foster, --- Pa. ----, 563 A.2d 1390 (1989) (equally divided court), citing
    from Hartford Accident & Indemnity v. Insurance Commission, 505 Pa. 571,
    582 A.2d 542, that the "state action" doctrine is a jurisdictional
    prerequisite prior to federal courts invoking federal protections and is
    irrelevant to the application of state constitutional rights.  Because our
    Supreme Court has only applied invasion of privacy protection under our
    Constitution in instances where there has only been direct government
    involvement, (See, e.g., Commonwealth v. Melilli, 521 Pa. 405, 555 A.2d
    1254 (1989);  Denoncourt v. State Ethics Commission, 504 Pa. 191, 470 A.2d
    945 (1983)), it is an open question whether that protection is applicable
    to regulations or adjudications made by state agencies.
    Even if "state action" is necessary to invoke the privacy protection under
    Article I, Sections 1 and 8, I do not believe that the PUC, in approving
    Caller*ID, was engaged in state action.  State action involves something
    more than adjudicating a Bell tariff charge, which it did not encourage or
    require to bring before it.  The PUC is not interested in whether Bell
    offers this service or not;  it did not become involved in or give its
    imprimatur to Caller*ID.  It only carried out its statutory duty to
    adjudicate requests that come before it.  Section 1983 liability should not
    attach merely because you adjudicate requests.  See Jackson v. Metropolitan
    Edison Co., 348 F.Supp. 954 (M.D. Pa.1972), aff'd, 483 F. 2d 754 (3rd
    Cir.1973), aff'd 419 U. S. 345 (1974).  See also National Collegiate
    Athletic Association.

     FN6. Another example of the General Assembly reestablishing the balance
    between technological developments and privacy rights is contained in
    Section s 5704(9) of the Wiretap Act, 18 Pa. C.S. s 5704(9), which allows
    only one party consent to the recording and disclosure involved in computer
    communications, electronic mail and voice mail.  The legislature realizes
    that such an important method of communication would otherwise be both
    unavailable and illegal.


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