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Save a Chatlog... Go to Prison? 486

Posted by CmdrTaco
from the hold-the-bots-responsible dept.
Alien54 writes "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. New Hampshire is "two-party consent state" -- one of those jurisdictions that requires all parties to a conversation to consent before the conversation can be intercepted or recorded. The decision is the first of its kind to apply that standard to online chats, and the ruling is clearly supported by the text of the law. But it marks a blow to an investigative technique that has been routinely used by law enforcement, employers, ISPs and others, who often use video tape or othermeans to track criminals in chat rooms. This also has troublesome implications [for employers] monitoring of email and other forms of electronic communications."
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Save a Chatlog... Go to Prison?

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  • Does... (Score:2, Interesting)

    by Anonymous Coward on Tuesday April 13, 2004 @10:47AM (#8847961)
    ...a "chat" or "conversation" include a bulletin-board-like site like Slashdot?

    Am I violating it by saving this webpage (once it has gained enough commentary)? How about a mirror of it?
  • Troublesome how? (Score:2, Interesting)

    by joonasl (527630) <joonas DOT lyytinen AT iki DOT fi> on Tuesday April 13, 2004 @10:48AM (#8847967) Homepage
    "This also has troublesome implications [for employers] monitoring of email and other forms of electronic communications."

    This is probably the least troublesome aspect of this particular issue. Employers should not be allowed to track peoples personal communications in any way.

  • by fdobbie (226067) on Tuesday April 13, 2004 @10:50AM (#8848015) Homepage
    Under the Sarbanes-Oxley act employers are required to monitor and archive all electronic communications. There was an article [theregister.co.uk] about this the other day over at El Reg.

    So, in New Hampshire, it sounds like employers must either not comply with Sarbanes-Oxley or must be guilty of illegal wiretapping. Or am I missing something?
  • by The I Shing (700142) * on Tuesday April 13, 2004 @10:57AM (#8848110) Journal
    Is email considered a telecommunications medium? If I'm a two-party consent state, and someone sends me an email without included or implied permission to save it, am I required to delete it from my server and my hard drive after I've read it?

    Hey, couldn't this be used to fight off an RIAA lawsuit? Could making a record of a Kazaa user's IP address without that user's consent be illegal in a two-party consent state?
  • by dmayle (200765) on Tuesday April 13, 2004 @10:59AM (#8848138) Homepage Journal

    This is downright welcome! Some portion of you are going to consider this flamebait, but shouldn't online chat be held to the same restrictions that other conversations are?

    If we had the easy ability to do audio searches, would there be phones that recorded a history of the last n hours of conversation you had? Just because you can do something doesn't mean you should...

  • Re:Easy... (Score:5, Interesting)

    by maximilln (654768) on Tuesday April 13, 2004 @10:59AM (#8848142) Homepage Journal
    Once again we demonstrate that, in our current society, law is meaningless as long as you sign an agreement. With this type of mindset we never should have fought a Civil War. Just have the slaves sign an employee agreement in which they consent to accepting nothing more than a shack, a plot of land, and arbitrary termination at any time.

    When is America going to wake up out of this hypocrisy?
  • by Caiwyn (120510) on Tuesday April 13, 2004 @11:08AM (#8848269)
    According to the article, the officer used a screencap to record the chat rather than an actual log generated by the chat program. From the article:

    The test seems to be whether the recording capability is part of the instant messaging software itself (in which case it may be legal to record) or whether it is an add-on, and therefore an unlawful recording.

    So the Slashdot article is somewhat skewed. The chatlog isn't illegal. And I wouldn't be too upset, since the process the officer used involved video screen capture, as well as cutting and pasting, to get into a final document.

    As far as chatlogs go, it's generally understood that written correspondence (mail, etc.) is owned by the one who receives it. I'd be surprised to see chatrooms fall outside that rule of thumb.

  • by Entrope (68843) on Tuesday April 13, 2004 @11:09AM (#8848282) Homepage
    If you had even bothered to read the ruling, you would have noticed that the judge considered that. The ruling specifically says that uesrs of clients that DEFAULT to logging things are safe, but if you have to enable logging, you could be in trouble. No, it doesn't make much sense. Hopefully somebody will fix the legislation.

    As for jurisdiction, that's a good question, and one that nobody has a good handle on. As we have seen, you might be arrested if you violate a country's laws while outside its borders but later enter it. I doubt any country would want to extradite someone for logging casual chats.
  • by dmuth (14143) <doug,muth+slashdot&gmail,com> on Tuesday April 13, 2004 @11:11AM (#8848305) Homepage Journal
    Modify your IM client so that when you start a new session with someone a message is automatically sent saying:

    "BY ENTERING THIS CHAT, YOU ARE AWARE THAT WHAT YOU SAY CAN BE RECORDED AND SAVED TO DISK. IF YOU DO NOT CONSENT, PLEASE END THIS CHAT."

    IANAL, but I think this would be sufficient under the current laws that we have that regulate wiretapping.

    Maybe I should code up a patch for GAIM...
  • IRC logs (Score:1, Interesting)

    by Anonymous Coward on Tuesday April 13, 2004 @11:16AM (#8848366)
    OK. So all my irc logs are illegal, the irc server's logs are illegal and fbi's warez channel logs are illegal ?
  • Sarbanes-Oxley (Score:2, Interesting)

    by Anonymous Coward on Tuesday April 13, 2004 @11:34AM (#8848613)
    I'm in the UK so it probably will not affect me, but how does this law interact with this ? IM Monitoring [theregister.co.uk]
  • by Kjella (173770) on Tuesday April 13, 2004 @11:41AM (#8848706) Homepage
    ..another clause that the *employee* must inform and get consent from all parties that he engages in conversation with, that the communication is monitored. Since the employee is part of the firm, the firm can claim clean hands "according to company policy, consent should have been acquired".

    Of course, it's CYA of the worst sort. But it should let the company continue monitoring employees just like they do today. If someone complains, well you can probably blame the employee (read: scapegoat).

    Kjella
  • Re:Logs are presumed (Score:3, Interesting)

    by TFloore (27278) on Tuesday April 13, 2004 @12:11PM (#8849149)
    Since 'save' is an option but not default in AOL's chat, you can't save it if anybody is from those 12 states.
    Umm... no.

    If *you* are in one of those 12 states, you must have consent of all parties. But someone in a one-party-consent state can record you, even if you are in an all-parties-consent state, without your consent.

    The Maryland cops use this a lot. Maryland is an all-parties-consent state. They routinely pop over the border into Virginia (a one-party-consent state), make a phone call to a Maryland phone, record it, go back to Maryland, and have a (legal) recording of a Maryland phone by a Maryland law enforcement officer, with only one party consenting.

    Tell me again why I should have respect for the law, when the police obviously don't?

  • by SnapperHead (178050) on Tuesday April 13, 2004 @12:12PM (#8849155) Homepage Journal
    I had a friend of mine, call me up last week. She was all upset on the phone and asked how well I could "wipe" a harddrive so there is no more data in in no matter what. At first, I wasn't going to do it. After she explained the story, I grabbed my tomsroot bootdisk and headed over to issue the dd command :P

    Apparently, her son was talking to some girl in his class ... it was a typical 14 year old conversation. You know those, talking about sex, but in very odd terms.

    Needless to say, at some point, his father (who doesn't live with them) was able to install some VNC software. He was monitoring his conversations and turned on the logging. When he seen what was going on, he called Dyfus. (Division of youth and family services) Which, one a side note for those who don't know. Is a child protection agency that is more intrested in prosecuting parents for anything they can, and ripping familys apart. They are NOT there to help you, only hurt you ... even durring times when its beyond your control.

    My friend recived a call from Dyfus which informed her that the next day to be home and they are coming to confiscate the computer for an investigation. On another side note, they should be required to have a search warrent for this, some idiot gave them full access to peoples homes without a search warrent. Which in some cases is good, but not all.

    They didn't give all the details to why they where doing this, but she already knew since the father was complaining about it a few days before.

    I told her to press charges against the father for unauthorized access to the computer. But, the local police department refussed to file the charges.

    Without getting too off topic, they could have charged her with endangering a minor if they had gotten access to those logs. Which, honestly is total bullshit. Thats what 14 year old kids do ... come on, lol.
  • by mdfst13 (664665) on Tuesday April 13, 2004 @12:52PM (#8849669)
    "well you can probably blame the employee"

    IANAL, and I don't have any knowledge about how this works in other countries, but in the US, I don't think that will fly in a court of law. The employee is an agent of the company. If the employee fails to get the permission, an agent of the company failed to get permission. Therefore, it's the company's fault (respondeat superior). I.e. companies are responsible for hiring employees, so they are responsible for the employees' actions.

    I know that after knee surgery my father was not able to return to work when he felt ready because they were concerned that he might reinjure his knee on work time (the original injury was not work related). Even if *he* had been at fault, they would have been liable if he was on work time.

    CYA of this sort only works inside a corporation. It has no weight in a court case, AFAIK.

    A better solution is to simply automatically inform anyone who connects that the conversation is being recorded (in the log file) and direct them to other methods of conversation if this is unacceptable. A buddy list request response might be able to handle this (if you only accept messages from someone on your buddy list; those not on it have to send you a request to be on it).

    DO you give implicit permission to record buddy requests that you make? If not, then how could they add you to the buddy list (doesn't that record it)?
  • Re:Easy... (Score:2, Interesting)

    by maximilln (654768) on Tuesday April 13, 2004 @12:53PM (#8849680) Homepage Journal
    -----
    It's perfectly legal to sit there and write out what someone's saying to you over the phone, but illegal to have a recorder store? That's just dumb.
    -----
    I agree.

    -----
    two party consent laws are stupid
    -----
    Ethically, consent laws period are just stupid. They're tactical loopholes used by people who know they're planning to do something which would otherwise be illegal. Either you have rights or you don't. Ethically you cannot take away someone's rights by cornering them into a position where the choice is implicitly "sign this or get fired".

    This is America, though. Disregarding the pomp and dispaly there are no true ethics. The only real law is "might makes right".
  • by cbreaker (561297) on Tuesday April 13, 2004 @12:58PM (#8849758) Journal
    I think we need more people like this.

    I mean, no, I don't want to be put in jail for saving a chat log, but I do believe that this type of thinking promotes freedom. You would have the freedom of saying something to a friend on IRC without worrying that someone is going to use it against you.

    In a country where the laws keep on getting more crappy for joe american, we need protection.
  • Re:Trillian Pro (Score:3, Interesting)

    by monkeydo (173558) on Tuesday April 13, 2004 @01:03PM (#8849832) Homepage
    No. The point is whether you either are or should be aware of the other person's settings. If logging is on by default then it is only safe for you to assume that the other party has logging turned on. It doesn't matter how you configure your side. OTOH, if you and the other party were using different programs with different defaults, it could be interesting.
  • by bnenning (58349) on Tuesday April 13, 2004 @01:12PM (#8849967)
    You would have the freedom of saying something to a friend on IRC without worrying that someone is going to use it against you.

    If you don't trust your friend, why are you telling him your secrets in the first place? Even if it's somehow possible to prevent him from saving the transcript, there's no way you can stop him from "using it against you".

    In a country where the laws keep on getting more crappy for joe american, we need protection.

    On the other hand, I see great potential for abuse. I'm sure certain individuals in government would love to prevent all permanent records of their statements.
  • Re:Relevance (Score:1, Interesting)

    by Anonymous Coward on Tuesday April 13, 2004 @01:33PM (#8850226)
    So what about open IM protocols, such as Jabber, where there are no "standard" IM client, and we don't necessarily know what client the other party is using? If I am using a client that automatically supports logging and the person I'm talking to is using one that doesn't, am I breaking the law?
  • Re:Easy... (Score:2, Interesting)

    by maximilln (654768) on Tuesday April 13, 2004 @02:02PM (#8850597) Homepage Journal
    -----
    If the slave had to sign a document that made it ok for him to be a slave, then I imagine slaves would never willingly do this
    -----
    My experience is that the situation would be approximated in this fashion,"Sign the papers or take your chances with the wild indians out there. You won't get a better deal from anyone else within a month's walk."

    This is the same as present day America. "Sign these papers or take your chances on the open job market. I hear McDonald's is hiring."

    I'm suddenly reminded of Qui-Gon Jinn in Episode I trying to buy a new engine from Watto. America the beautiful isn't really any different for all the pretty rhetoric that the politicians have.

    If a husband says "have sex" and his wife says "no" and he forces her then he is still legally accountable for sexual assault. If a company says "sign this" and the employee says "no" the company is not liable for wrongful termination. This is only legal because power currently takes precedence over rights. In that case why are citizens ever deluded into thinking that they have rights? Who would ever refuse a consent form to be monitored if the implicit alternative was to get a "dangerous driving" ticket every time they pulled out of their parking lot? The "dangerous driving" may be disproved in court, though the police typically get the benefit of the doubt, but the constant harassment alone will have more of a toll than the ticket.
  • Re:Relevance (Score:3, Interesting)

    by gnu-generation-one (717590) on Tuesday April 13, 2004 @03:25PM (#8851570) Homepage
    "How do you get around the fact that the IM chat is immediately recorded (by definition) when it appears in your IM application?"

    More usefully, does it make it illegal for your ISP to record your IM conversations?

    And with the laws requiring ISPs to record everything, does that make it illegal to even be an ISP?
  • by LastAndroid (695190) on Tuesday April 13, 2004 @03:29PM (#8851625) Homepage
    I wonder if it would be legal if you put a diclamer in your AOL or AIM profile that says "by IMimg me you give consent to have the conversation logged".
    Since profiles are public and easily veiwed I think it would be fair warning.
    If you say you have DeadAIM in your profile, which logs by default, then wouldn't that also be fair warning.

    The only people who aren't able to view profiles are using third party clients, which use auto-logging anyway.
  • This is just nuts! (Score:2, Interesting)

    by RangerFish (770981) on Tuesday April 13, 2004 @03:41PM (#8851778)
    Ok, is this going to be realistically possible to police? I mean, I live in the UK, and as far as I know, there is no such law here. So if I record a chat with someone who's in New Hampshire... What then? If I am liable in this situation, how do I know whether or not the person I'm talking to is in a state with these laws? Also, I have MSN Messenger set up to automatically save a log (great since my cousin sends me URLs to all kinds of stuff, and it's nice to be able to get to them once the chat is closed). Am I potentially breaking the law? I'd probably say that anyone who signs onto a chat room implicitly gives their consent to have their messages recorded.
  • by vadim_t (324782) on Tuesday April 13, 2004 @03:50PM (#8851899) Homepage
    For me they'd probably apply the maximum sentence. I not only log my conversations, I also parse them with a Perl script and store them in a mySQL database.

    This is because I have a rather bad memory, and it also comes very handy sometimes. For example, it's useful to find URL that appeared in a conversation, find what exactly somebody said about some subject without having to dig in all my logs (having 4 different places with logs is quite a nuisance), and it's especially useful to find things like birthdays and addresses.

    I think the current database has somewhere about 100K rows.
  • by Anonymous Coward on Tuesday April 13, 2004 @03:52PM (#8851923)
    Not quite. What he said was that using the client app's logging was okay, but that using any other form of logging is forbidden.

    The logic is that the other person should realize that if you're chatting on AIM, and the normal AIM client has logging features, then logging of the conversation is likely.
  • by NotQuiteReal (608241) on Tuesday April 13, 2004 @06:01PM (#8853638) Journal
    Maybe I just make up fictional chat conversations, for creative writing practice.

    What if I take a real chat session and change the names? Heck, real chat sessions don't even have real names; Can Munkygurl69 show me some legal ID with that name on it?

    What if some hacker put those logs there! Seems like some California judge got off on some sort of child porn charges by claiming it was put there [actually he got off because the search of his computer was illegal - but the claim was hey, if this guy could break into my computer and "search" it, why couldn't he have put the stuff there!]

    If you leave an open wireless connection can you then plausibly deny anything coming from your IP address was necessarily "you"? Isn't it like those red-light cameras - if the driver doesn't come out in the picture, they only know that it was your car, but can't prove you went thru the light.

  • Re:Relevance (Score:2, Interesting)

    by DeltaZulu0 (749676) on Thursday April 15, 2004 @03:13AM (#8866875)
    If you hold that human memory is purely an electro-chemical process, why shouldn't this then apply to people as well. Admittedly it's a lossy process but they don't disqualify as evidence poorly recorded or degraded audio/video tapes.
  • AUP. (Score:1, Interesting)

    by Anonymous Coward on Thursday April 15, 2004 @10:33PM (#8877570)
    73. By entering this chat room you agree that any of the parties participating in the conversation may save all or part of the conversation.
    74. You abandon all copyrights to any informations and opinions you express in this chatroom.

"I have more information in one place than anybody in the world." -- Jerry Pournelle, an absurd notion, apparently about the BIX BBS

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