concurring and dissenting.
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, *309for 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. §§ 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” device1 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.
*310Bell’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.2 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. § 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. *311Both 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” 3 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, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979), and “trap and trace” devices, Rathbun v. United States, 355 U.S. 107, 78 S.Ct. 161, 2 L.Ed.2d 134 (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 99-541 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 *312does when the service is purchased.4 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. § 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 *313communication, 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. § 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 *314those 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, *315if 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. § 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.5
*316Our 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 Goshen 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”).6
In light of the constant technological advances and the shifting balance that invariably results, we should not prematurely enunciate a constitutional prohibition until the *317General 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 tp 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.
McGINLEY, J., joins in this concurring and dissenting opinion.. 18 Pa. C.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. § 3127.
. 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 CaIler*ID display unit, or, for that matter, any method by which that result occurs.
. 18 Pa. C.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 abo 18 U.S.C. § 3127.
. 18 U.S.C. § 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. § 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 "scrivner’s choice.”
. 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, 488 U.S. 179, 109 S.Ct. 454 at 461, 102 L.Ed.2d 469 (1988). Our Supreme Court adopted a similar view in Bartholomew v. Foster, 522 Pa. 489, 563 A.2d 1390 (1989) (equally divided court), citing from Hartford Accident & Indemnity v. Insurance Commission, 505 Pa. 571, 482 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 *316did 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, 95 S.Ct. 449, 42 L.Ed.2d 477 (1974). See also National Collegiate Athletic Association.
. Another example of the General Assembly reestablishing the balance between technological developments and privacy rights is contained in Section § 5704(9) of the Wiretap Act, 18 Pa. C.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.