IM Alert

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Via Slashdot comes a report of a New Hampshire Superior Court ruling holding that under the state's "two-party consent" wiretap statutes, the fairly routine practice of logging an IM chat may be as illegal as surreptitiously recording a phone conversation. Or as the author of the piece linked above somewhat melodramatically puts it:

You are engaged in a chat session with some friends and colleagues, when one of them makes a witty remark or imparts a pithy bit of information. You hit CTRL-A and select the conversation, then copy it to a document that you save. Under a little-noticed decision in a New Hampshire Superior Court in late February, these actions may just land you in jail.

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  1. yes, but wot does julian sanchez fink about dis!!!

    dat be de question?

  2. yes, but wot does julian sanchez fink about dis!!!

    dat be de question?

  3. You hit CTRL-A and select the conversation, then copy it to a document that you save. Under a little-noticed decision in a New Hampshire Superior Court in late February, these actions may just land you in jail.

    Am I guilty too?

  4. Yikes. Especially when you consider ICQ and Trillian automatically logs all your IM conversations.

  5. But when you SPEAK, you are under the impression that your words will vanish as soon as you’ve said them. When writing or typing, you have to expect that some sort of physical record might remain, anyway. What’s next–will it be illegal to save old love letters?

  6. That’s the interesting thing–the decision seemed to say that if the software *automatically* logs the chat (and the pther guy knows it–which he wouldn’t necessarily, since Trillian can connect to the AIM network), then it’s cool because there’s implicit consent or some such thing. But copying and pasting is (apparently) another story. I don’t know; unlike a phone conversation, I work under the assumption that anything I fire out over the internet is potentially being recorded (at the very least) by the other person. One of the problems of “reasonable expectations” based jurisprudence is that sometimes, in a new medium, it’s not clear what the expectation is.

  7. Good point, Jennifer. Also, is copying and pasting really that different than quoting someone? Say, if in a phone conversation, I repeat what one says.

  8. Julian-
    But, to take your example further: that’s like saying I can save old love letters, but not cut out choice bits and save them in my scrapbook.

    And here’s something else: on another thread right now, I mentioned the old bit about how Bin Laden family members were flown out of the USA on 9-12. Some guy posted that I was deluded. I responded by looking back in the archives and copying another man’s earlier posting proving which proved the truth about the flights. Then I did the old cut-copy-paste thing, giving full credit to the original poster. Did I break the law, by taking a saved document and posting it somewhere else?

  9. Correction: “I responded by copying another man’s posting which PROVED THE TRUTH about the flights.”

    I should take more care to avoid typos, but apparently it doesn’t matter since anyone who saves them for posterity will be arrested anyway.

  10. Correction: “I responded by copying another man’s posting which PROVED THE TRUTH about the flights.”

    I should take more care to avoid typos, but apparently it doesn’t matter since anyone who saves them for posterity will be arrested anyway.

  11. Absolutely, this is just dumb. Copy and paste is not recording. There is no ‘certificate of authenticity’, one can claim it’s a forgery or had been tampered with etc. etc. It should be no different than if you ‘recorded’ your phone conversation with shorthand. It’s just the officer?s notes, the evidence is his testimony, not the so called recording.

    I reject the claim that since it was a digitally transmitted conversation, sent in packets, that there can be no expectation of privacy. A ‘phone’ conversation should not loose it’s protection because it was conducted using VoIP technology.

  12. Another issue is, who is doing the recording? You’re employer can monitor your phone conversations at work, even record them. But if I did exactly the same thing, I’d be breaking the wiretapping law.

  13. “If Detective Warchol had not taken these acts, the words of the online communication would no longer exist after the program was exited or the computer was shut down.”

    If the legal standard is persistent store, then we’re all in trouble.

    As with all digital technology, IM creates a copy of everything as part of its normal operation. The only question is whether it ever places the copy in any form of persistent storage. Users may not have to take any conscious action. Some IM applications create a type of cache file that may persist after the application quits. Some operating system may also trap the raw packets.

    I don’t think the Judge understands how all this works.

  14. Where is everybody getting this phone-taping-is-illegal idea? While some states ban it — or maintain guidelines, at any rate — in most places it is perfectly legal to tape a phone conversation without anybody’s consent.

  15. Sam,

    I think you mean to say that many states are one-party-consent states. Meaning that you can tape a conversation to which you are a party without anyone elese’s knowledge or consent.

    I’m pretty sure it’s illegal everywhere to tape a conversation that you are not involved in without a court order.

  16. Yay for Ohio! Where I can (and do) record all kinds of conversations with only my own consent!

    I use Microsoft OneNote to record all of my phone conversations at work (they take up very little space in WM9 format) – and when I play the note back, it highlights the text notes I made at that moment in the recording! Super cool!

    “This phone call may be recorded for quality assurance purposes”? It definately is if I’m on the other end of the line!

    Then I record conversations on my Pocket PC all the time as well – especially in cases where retail managers and I don’t see things the same way.

    I also use MSN Messenger – which I have set to log all conversations (though I use the Messenger Plus! add-in to encrypt the contents).

  17. From what I have noticed in my chatting life, AOL does not appear to have a way to log chatroom converstations. Altho if you purchase another software, it can do that for you. Now CompuServe does provide a box to check off if you wish to record chatrooms. And with CompuServe, you don’t have to be in the room to record, just observing.

    With ICQ, to not log the conversation, one would have to dig thru the preferences and uncheck that box.

    I don’t see how any log would cause any real issue tho. Logs are merely text files, and easy to manipulate.

  18. This is very interesting indeed.

    I wonder, though, why you would want to log a conversation if you weren’t trying to nail someone. Then, can’t the conversation leading up to any admissions be considered as entrapment.

    OK…so, let’s say the entrapment thing is silly and you have no premeditated idea to log the conversation. You’re in a chat room and someone admits to killing a person. Or someone asks you to come over and act out a rape fantasy and you show up at their house and it’s not that person.

    Couldn’t logging actually be helpful in finding people who have responsibility in a crime, or help defend someone who has inadvertently made a very bad choice?

  19. Linda: I might want to log a conversation simply so I could reread it at a later date. Perhaps I’d want to look up an interesting URL that was mentioned, or recheck some obscure fact that was brought up. There is no need to suppose intent to “nail” anyone.

  20. Has it become required now that state Supreme Court justices smoke crack when they write their decisions?

  21. Could it not be assumed by all parties that IM programs are logging? Isn’t the fact that the messages are stored within the buffer of the IM program (that area where they all show up) an indication of logging? And since both (or all) parties in the chat have their messages show up in that buffer, cannot it be assumed that all parties have given consent to all those involved in the chat to have a text record of the conversation, since they must know that the IM system works the exact same way on the other ends of the conversation?

    Unfortunately for all this conversation, the actual case involved a person taking a screenshot of the chat window (are logs not allowed?) and using the screenshot as the evidence of the chat. I can see that that would be materially different from using a log of the chatroom conversation. Yet I still wonder, as in the above paragraph, that since the person HAD consented to having their words shown on a screen to all the parties involved, why doesn’t that consent apply to other ‘recordings’ of that screen? Does AOL’s chatroom software not allow for client-side logging? If so, that may meet the standard for not expecting it to be recorded.

    This is a nice one of those ‘got off on a technicality’ deals.

  22. I’m thinking of contacting the appropriate committee of the NH legislature on this. (I live in NH.) There may well be enough sane legislators to pass an exemption allowing logging for personal use — and I’m confident Gov. Benson would sign it.

  23. Right. But, there may be some people who, in the attempt to catch someone in a lie, for example, would premeditate something like that. I didn’t mean to imply that other reasons weren’t possible, which is why I went on to describe ways that logging would be helpful in a legal setting. I guess I failed at pointing out bad & good.

    Actually, this is a perfect example, though, about how logged words in a chat room can be just like words recorded on an answering machine. I’m sure every person has experienced looking at something they wrote or said, the next day, thinking that it wasn’t exactly what they meant…in ordinary conversation. (Admitting to a crime, is much different. There’s not a whole lot of subjectivity there.)

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