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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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  • by theefer (467185) * on Tuesday April 13, 2004 @10:46AM (#8847940) Homepage
    MIST : May I Save This ?
  • Relevance (Score:5, Informative)

    by andy666 (666062) on Tuesday April 13, 2004 @10:47AM (#8847949)
    I wonder if Hotwarg vs. the US from 1967 will have a direct bearing on this - it addressed a very similar issue for phone conversations.
    • Re:Relevance (Score:5, Insightful)

      by I am Kobayashi (707740) on Tuesday April 13, 2004 @12:13PM (#8849171)
      I haven't read this decision, but I suspect it was from an out-of-touch judge.

      How do you get around the fact that the IM chat is immediately recorded (by definition) when it appears in your IM application?

      What about implied consent? Since you know by using the IM application that your conversation is automatically being recorded in the other party(or parties) IM application, doesn't that necessarily mean that you have consented to its recording?

      I think so, and I think this decision is just one that will be dismissed or criticised when this issue is briefed before the majority of courts in other jurisdictions. It is a NH state decision - it has no force anywhere else.....

      • Re:Relevance (Score:4, Insightful)

        by brlancer (666140) on Tuesday April 13, 2004 @12:42PM (#8849528) Homepage Journal
        What about implied consent? Since you know by using the IM application that your conversation is automatically being recorded in the other party(or parties) IM application, doesn't that necessarily mean that you have consented to its recording?

        I believe this is the logic used in reference to voice mail/answering machines, where it was by nature recorded and it had to be supposed that a third party could hear it.

        What confuses me is that this is listed under a "wiretap" law; my understanding (common understanding?) is that a wiretap is a "man in the middle" attack where a third party "eavesdrops" on a conversation. In this case, they are applying it to one party recording their conversation with a second party. While they may want to prohibit this (two party consent) it really is separate from wiretapping.

        • Re:Relevance (Score:3, Informative)

          by Carnildo (712617)
          What confuses me is that this is listed under a "wiretap" law; my understanding (common understanding?) is that a wiretap is a "man in the middle" attack where a third party "eavesdrops" on a conversation. In this case, they are applying it to one party recording their conversation with a second party. While they may want to prohibit this (two party consent) it really is separate from wiretapping.

          The original wiretap laws were about third-party recordings. Since then, the laws have been expanded to cover
        • by macdaddy (38372) on Tuesday April 13, 2004 @03:39PM (#8851752) Homepage Journal
          Well, actually the party consent is considered under federal wiretapping laws and mimicked with state laws. All but 12 states have one-party consent law where only one member of the conversation must consent to the recording. 12 state have an all-party consent law where all members of the conversation must consent to the recording. There is no such thing as a two-party consent law. I had this discussion earlier this week so it's very fresh in my mind. Google for "one party consent wiretap."
      • by cbreaker (561297)
        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.
        • 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:4, Informative)

        by monkeydo (173558) on Tuesday April 13, 2004 @12:59PM (#8849773) Homepage
        If you'd RTFA you would have seen:
        In the AOL chat session, there was no such default recording, and therefore no consent by Mr. MacMillan. Therefore, the recording was illegal. 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. Courts in other all-party consent states like Maryland have reached similar conclusions with respect to recording telephone conversations.
        • Re:Relevance (Score:5, Insightful)

          by afidel (530433) on Tuesday April 13, 2004 @03:03PM (#8851322)
          Well the judge is wrong. The protocol itself makes no attempt to allow or block recording, but another application by the same company (ICQ) can talk to the same network and includes a history function. That's a pretty damn fine hair to split if you are going to throw someone in jail. I can see not allowing police officials to introduce such a log without a court issued warrant but I can not see making it a crime to record a medium which is by nature not secure.
      • Re:Relevance (Score:3, Interesting)

        "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?
  • Trillian Pro (Score:4, Insightful)

    by MrEnigma (194020) on Tuesday April 13, 2004 @10:47AM (#8847951) Homepage
    Well, I guess I better turn off Trillian Pro's logging by default....or at least have a macro sent to them when I start the conversation...
    • Re:Trillian Pro (Score:4, Informative)

      by Enigma_Man (756516) on Tuesday April 13, 2004 @11:04AM (#8848196) Homepage
      Did you read the article? It said that in Washington, a guy in an ICQ conversation got caught in much the same way, but by default ICQ comes with logging enabled, which the guy must have known, and thus, that was his form of concent of recording the conversation. So, apparently if your software does that by default, you're in the clear.

      -Jesse
      • Re:Trillian Pro (Score:5, Informative)

        by That's Unpossible! (722232) * on Tuesday April 13, 2004 @11:36AM (#8848645)
        But I could be using Trillian Pro while you're using AIM. You have no idea I'm on Trillian Pro, which logs chats by default (a wonderful feature).
      • Re:Trillian Pro (Score:5, Insightful)

        by Qrlx (258924) on Tuesday April 13, 2004 @11:44AM (#8848764) Homepage Journal
        But we need to know if this is a two-way street:

        Let's say I'm using ICQ, and I take the extra step to turn off the logging. Does that mean that I don't consent to the conversation being recorded?

        This seems pretty important.
        • Re:Trillian Pro (Score:3, Interesting)

          by monkeydo (173558)
          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 Anonymous Coward
    ...from my teletype. LOL. Laters.
  • Does... (Score:2, Interesting)

    by Anonymous Coward
    ...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?
    • Re:Does... (Score:5, Insightful)

      by Bombcar (16057) <racbmob&bombcar,com> on Tuesday April 13, 2004 @12:25PM (#8849318) Homepage Journal
      No, because implicit in the agreement that everyone makes with Slashdot when posting is permission for Slashdot to reproduce and store the post upon their servers.

      That means that even if it is a conversation, permission has already been given to Slashdot, at least, to copy and record it.

      So, for example, I can't sue Slashdot for reproducing my words here, because my post is indication of my consent to have them reproduced.

      But if you save a copy, I could potentially accuse you of copyright infringment, because I have only granted Slashdot a right to reproduce.

      But fair use would cover that, probably, and I license this post under the Creative Commons Attribution-ShareAlike License [creativecommons.org]

      But do note that copyright is a separate issue from the chat logging issue.

      (Dang, I sound like a stinkin' lawyer!) IANAL.
  • Easy... (Score:2, Insightful)

    by donnyspi (701349)
    Have employees sign a paper saying they consent to email monitoring and the legal issues will disappear. Also, before entering a chat room, the user could have to check a box agreeing that conversations could be recorded. Maybe it's more complicated than that, I'm not sure if you need to acquire consent on a per-conversation basis or not.
    • Re:Easy... (Score:5, Informative)

      by fdobbie (226067) on Tuesday April 13, 2004 @10:53AM (#8848043) Homepage
      If you had actually RTFA it says that ALL parties must consent. Sure, you can get consent from your employee that their communications can be monitored, but how do you get consent from the person they are communicating with?
      • by Kjella (173770)
        ..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
        • 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:5, Informative)

      by Nuroman (588959) on Tuesday April 13, 2004 @10:54AM (#8848067)
      Not so fast. The issue isn't whether or not the company was monitoring the employee's chat session, rather that they were monitoring the recipient of the employee's chat session. In two party consent states, it wouldn't matter whether or not the employee signed any agreement. The third party would have to consent to the monitoring.
    • 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?
      • Re:Easy... (Score:3, Funny)

        by zulux (112259)

        When is America going to wake up out of this hypocrisy?


        Hopefully not anytime soon!!

        I rather enjoy my life of opressing the lower-classes.

        Gotta-jet - it's time fout our annual Hlaiburton/Nader meeting - hopefully Nader will be able to pull off another doozy. He's so cheep too.. it's amazing what he'll do for a box of marshmallow peeps.

      • Re:Easy... (Score:4, Insightful)

        by Mistlefoot (636417) on Tuesday April 13, 2004 @11:58AM (#8848983)
        "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 law is not meaningless as long as you sign an agreement. The law requires that you agree. You are missing the point or did not even read the topic.
    • Re:Easy... (Score:5, Insightful)

      by Entropius (188861) on Tuesday April 13, 2004 @11:02AM (#8848175)
      I don't think we want to encourage poking at check-boxes to be a legally-binding act.

      Remember all the ire about clickthrough agreements? Yeah.
  • you better not be contributing to bash.org [bash.org].
  • Troublesome how? (Score:2, Interesting)

    by joonasl (527630)
    "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 lukewarmfusion (726141) on Tuesday April 13, 2004 @10:48AM (#8847968) Homepage Journal
    Every web application I create logs transactions, IP/datestamp, and chat transcripts (when applicable). If there's an information leak somewhere, or a crime has been committed, we can track it down.
    • by Courageous (228506) on Tuesday April 13, 2004 @10:57AM (#8848114)
      The problem with this assessment is that, if evidence is taken in an illegal manner, it's not admissable in court. In some cases, all *sub* evidence gathered as a result from illegal evidence can also be ruled out. Fruit of a poisoned tree and all that.

      C//
    • But the point here is that you may not be able to use this as evidence in court. While you may testify yourself to such events happening, it would be illegal for you to provide this evidence in many cases. The interesting tidbit from the article was that this happened to a guy using AOL's IM, and the evidence couldn't be used because a chat-logging app was installed over IM. But when it happened to another guy using ICQ, which had a default setting to log conversations, he had the conversation used again
  • Not in Texas! (Score:4, Informative)

    by MImeKillEr (445828) on Tuesday April 13, 2004 @10:48AM (#8847973) Homepage Journal
    In Texas, as long as one party knows the conversation is being recorded, it's legal.

    As long as you're not keylogging someone else's conversation, doing what the article mentions is legal.

    But one question: Why is this under the Science category and not under Privacy?
    • Everything's bigger in Texas. Bigger Brother is just means we're being consistent.

      But one question: Why is this under the Science category and not under Privacy?

      Yeah, I think they were aiming for 'Your Rights Online' and missed by about 15 letters (not including whitespace).
  • uh oh (Score:4, Funny)

    by baggachipz (686602) on Tuesday April 13, 2004 @10:48AM (#8847976)
    so, Posting IM conversations [drunkramblings.com] with random morons can get people in trouble? Where's the justice?
  • IM too? (Score:3, Insightful)

    by Revolution 9 (743242) on Tuesday April 13, 2004 @10:49AM (#8847981) Homepage
    iChat for Mac OS X has a feature that allows you to log all IM conversations automatically. I wonder if this kind of online communication is included in the NH decision.
  • Inefficient (Score:5, Funny)

    by Patik (584959) * <cpatikNO@SPAMgmail.com> on Tuesday April 13, 2004 @10:49AM (#8847987) Homepage Journal
    ...who often use video tape or othermeans to track criminals in chat rooms.
    You know, there's an easier way to log chats than to point a video camera at the monitor...
    • Re:Inefficient (Score:3, Insightful)

      by texasandroid (692557)
      Yeah, but I would think a video would make for better evidence, giving indications of the speed of the conversation, and guaranteeing that the contents of the conversation hadn't been edited, which could be done with any sort of flat-file logging.
      • Re:Inefficient (Score:5, Insightful)

        by silas_moeckel (234313) <silas AT dsminc-corp DOT com> on Tuesday April 13, 2004 @11:03AM (#8848193) Homepage
        I think you should say giving the appearance that it has not been edited. Video taping the conversation means very little as you dont have any proof of when it is. You just play back an edited chat in front of the camera and it would look the same. You want a good log give me packet dumps from there end complete with any encryption there are firewalls that do that as a standard feature. Thats a lot harder to fake than some video tape of a computer and some cop. Granted I dont trust cops implicitly by definition there career is bosted by having a high arrest and conviction rate they have plenty of oppertunity and motive to alter evidence when they know they can get away with it. And before I get flames no not every cop is bad most probably arent but in something as serious as criminal charges I think they are not held to a high enough stnadard.
      • by beacher (82033) on Tuesday April 13, 2004 @11:12AM (#8848311) Homepage
        "as part of his official duties, Detective Frank Warchol of the Portsmouth, New Hampshire Police Department signed on to a chat room on America Online, posing as a fourteen-year-old girl "Okay, repeat after me..
        There are few horny women in chat rooms.
        There are fewer horny non-male women in channel.
        The are even fewer horny non-male under 50 years of age women in channel.
        Okay.. that leaves 1 left..

        MOM! WTF are you doing online!!!
  • Active vs. Passive (Score:2, Informative)

    by normal_guy (676813)
    Some chat software automatically saves chatlogs. ICQ and Yahoo allow offline messaging, and act as 3rd-party brokers of the conversation. I can't see this standing up under further judicial scrutiny.
  • This could have consequences for sites like bash.org [bash.org]
  • by Anonymous Coward on Tuesday April 13, 2004 @10:49AM (#8847994)
    If the decision stands, do we wring our hands over the "loss of a freedom"? Or if the decision is overturned, do we wring our hands over "unprecedented police powers"?

    Only certain thing is that Bush will be blamed for it either way...
  • Logs are presumed (Score:3, Insightful)

    by BrynM (217883) * on Tuesday April 13, 2004 @10:49AM (#8847998) Homepage Journal
    Most IM software has a feature that turns on logging. I would think it would be assumed that someone in chat is keeping a log. It seems common sense not to say anything incriminating over chat. At least to me...
    • by Frobnicator (565869) on Tuesday April 13, 2004 @11:02AM (#8848182) Journal
      Well, if you had READ THE ARTICLE you would have seen this:
      Clearly Detective Warchol consented to the recording he made, and MacMillan had little expectation of privacy in the chat session. But New Hampshire, like many other U.S. states including California, Connecticut, Delaware, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, Pennsylvania and Washington, requires all parties to the communication to consent to a recording before it is legal. And MacMillan, while engaged in the conversation with the putative 14-year-old, did not consent to recording the conversation.

      It is useful to contrast the MacMillan case with one in 2002 in Washington state which has an even more stringent all-party consent statute. In that case, Donald Townsend engaged in an ICQ session with what he believed to be a 13-year-old girl, but was in fact an undercover police officer. In permitting the introduction of the recorded ICQ session, the court noted that the ICQ technology itself had a default setting to make a permanent record of the conversation. The court found that since Townsend should have known about the default setting, he effectively consented to the making of the recording under Washington's all-party consent statute.

      In the AOL chat session, there was no such default recording, and therefore no consent by Mr. MacMillan. Therefore, the recording was illegal. 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. Courts in other all-party consent states like Maryland have reached similar conclusions with respect to recording telephone conversations.

      So, it seems that since 'save' is built as a default into ICQ, it is presumed to be consent to save it. Since 'save' is an option but not default in AOL's chat, you can't save it if anybody is from those 12 states. My guess is that IRC would have automatic consent, since many IRC clients generate logs.

      But once we start throwing compatible and cross-network IM clients around, who knows what the rulings would be. Plantiff: "My client does NOT log by default, so there is no implied consent" Defendant: "Your doesn't but my client DOES log by default, therefore, the system implies consent."

      frob

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

        by TFloore (27278)

        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

    • by Incongruity (70416)
      IANAL-BIWGPLOS (I am not a lawyer but I will gladly play one on slashdot) but I'd argue there's nearly implied consent when chatting, especially in a chat room.

      When chatting, especially with multiple parties, but via computer systems, it's common practice and common knowledge that network activity (and hence the chat itself) may be logged, sometimes without the explicit intention of the user (example: a firewall log may record the date/time, IP address and other sorts of information about the sender and th
  • Does anyone really think that this will make it impossible for police to record chats? They can tap a phone line without the consent of either party, so why wouldn't they be able to do the same here?
    • by Lugor (628175) on Tuesday April 13, 2004 @11:03AM (#8848189)
      I don't think that is the point. I use Trillian and Gaim, they have auto-loggin features. So does M$-Me$$enger and many other programs. Do users have to go in and turn these off? If the program auto-logs, does that mean the user is guilty automatically by this ruling? Or should it be ASSUMED that the chat program logs and users should ask that their conversations be unlogged? What happens if I'm chatting with my friend in Canada? Britain? India? Caymans? etc... Do I have to obey their 'wiretaping' laws or they mine?
    • by Politburo (640618) on Tuesday April 13, 2004 @11:14AM (#8848337)
      It would mean they have to get a warrant first, not make it impossible to record chats.
    • by rark (15224) on Tuesday April 13, 2004 @12:29PM (#8849367)
      Well, it means that they'll actually have to get a warrant.

      I have mixed feelings on these laws. On one hand, I do think that privacy is important. On the other hand, I was in a situation where I was receiving interstate harassing phone calls. I taped some of the calls, but the cops wouldn't even listen to them because both the state they were originating from and the state I was in are two party consent states. So even though I had proof that this person was calling me up and threatening me (specifically saying that if I didn't send her money she would tell the authorities that I had done various illegal things that I hadn't done, nor would ever even consider doing), I couldn't have used it in court, even in my defense if she had later carried out her threat. AFAIK, she never did and eventually she got bored and stopped, but it could have been ugly for me, to say the least.
  • This just goes to show how out of touch the current lawmakers are with techonology.
  • 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?
  • This is Science? (Score:4, Insightful)

    by Tickenest (544722) on Tuesday April 13, 2004 @10:51AM (#8848018) Homepage Journal

    This sounds an awful lot like a Your Rights Online topic.

  • This isn't to much of a blow to employers. Most employees can be fired at the discretion of the employeer. If they know you are doing it then that is enough. They don't have to go through any legal system or have proof that is legally bound.
  • by Aindair (753209) on Tuesday April 13, 2004 @10:51AM (#8848025)
    So, online games with logging to file features (Everquest, SWG, DAoC, etc) would fall under this ruling too?
    I know people that have logged to text files and then to data base everything they have said and had said to them for 5+ years in some of these games. Considering that /tell features in the games should be considered as private as a chat session, this must suck.
    Also considering that techsupport often asks for logs when reporting bugs/unusual behavior or cheating, would that make them accomplices after the fact?
  • This is probably already commonly covered with most employer Internet Usage Polices that employees are typically required to sign. I know that, with the larget companies for whom I've worked, I had to sign this policy that notified me that they could read my e-mail, monitor my Internet Usage and pusnish me for disobeying the policy. I'd bet this is enough notice to cover a case like that described in the blurb.
  • by kypper (446750) on Tuesday April 13, 2004 @10:53AM (#8848045)
    Anything that's public is takeable. If the police want someone's fingerprints, they may not be able to get them without a warrant, but they can snag the softdrink the person just tossed in the trash. The chat room is like a piece of paper someone has written a letter on then tossed out: now public domain. Once the person leaves a chat room (especially in something like IRC), the list is still there logged to your computer until you close the screen.

    Interestingly enough, what about programs that log the chats automatically? I would have an easy time (I think) defending that trillian was logging without my knowledge as opposed to me physically copying a conversation without the other party's consent.
    • The chat room is like a piece of paper someone has written a letter on then tossed out: now public domain.

      It doesn't affect police you say? Did you read the article? Why do you think the judge claimed it specifically does affect the police? Should I belive Justice Robert Morill, or you?
    • What about a conversation held by a series of paper snail-mail letters? Is it illegal to save those letters? I don't think so. A chat room is basically the same thing, just instant and electronic. Rather than sending a stream of sound information (phone) they are giving you an electronic copy of text that they have written. I can't see how this law applies, but I guess I'm not a lawyer.
  • by spellraiser (764337) on Tuesday April 13, 2004 @10:53AM (#8848047) Journal

    They are missing one crucial point here I think. A chat log is (usually) just a plain text file of the contents of a chat session. A file like this could easily be created by hand by anyone, at any time. Even when it's something more sophisticated than a text file, it can still be faked pretty easily.

    So wouldn't a log like this be completely inadmissable in any court anyway? Wiretaps have been used for years on the premise that audio analysis can be used to unerringly establish the identity of the speaker. Chatlogs are simply a whole other kettle of fish.

  • by stealth.c (724419) on Tuesday April 13, 2004 @10:55AM (#8848082)
    New Hampshire residents won't have to {ASSASSINATE BUSH} worry about the Feds going after them for {ANTHRAX} setting off {A BOMB} certain designated keywords in IRC.
  • by Entropius (188861) on Tuesday April 13, 2004 @10:56AM (#8848102)
    Most IRC clients will buffer quite a few (thousands) of lines in RAM. Is this sort of recording different? What if it gets swapped to disk? What about systems with long average uptimes--if I just leave my IRC window open for a month (or leave it up through hibernate/resume cycles), have I recorded it? What if I have that conversation on a laptop, and try to get it admitted as evidence without ever powering it down? ("Hurry up, Your Honor, klaptop says I've got 30 minutes of battery life left!") What if I hibernate it and resume it in the courtroom? Then it's technically been written to a permanent storage medium, but only as an extension of a volatile one.

    The law needs clear definitions to work well... I don't think it's a blow to privacy rights for participants to assume that anyone party to a text conversation can record it.

    Spoken conversations are by definition transient--the sound is gone as soon as it happens. The law makes sense for those. But for text conversations, with backscroll and long buffers, it quickly becomes silly.
    • I agree completely. Most of the disagreements that I've had with people about management of "their" information that I have is a result of us having different perceptions of what's going on.

      I get strange looks from some people when I mention in-passing to them that I rarely delete email. (From my perspective, disk space is cheap.) For the majority of techie people who I know, this is completely ordinary. But for other people who are used to deleting email soon after they've read it and not keeping

  • 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...

  • by CrazyTalk (662055) on Tuesday April 13, 2004 @11:01AM (#8848171)
    This whole thing is ridiculous. Some IM systems (MS Messenger comes to mind) automagically save all of your chats, whether you specify it or not. In fact, prolly most users don't even realize that they are being saved. Are all users of that software to be immediately jailed?
  • by happyfrogcow (708359) on Tuesday April 13, 2004 @11:05AM (#8848209)
    How does this apply to someone using a printer instead of a monitor, such that the printer prints out every line of the conversatino as it happens?
  • by theLOUDroom (556455) on Tuesday April 13, 2004 @11:06AM (#8848234)
    I don't see how this decision is going to stick. I really don't think it will. Has the EFF gotten involved in this yet?

    I live in NYS and have my IM client set up to log ALL conversations. I consider it no different than saving an email.

    People need to learn that ANYTHING they put on the internet might become public and/or stay there forever.

    Of course it sounds like NH is screwed up anyways. Being able to record a conversation without someone else's knowedge is a standard CYA procedure. If it was easy, I would set it up so that all my phone conversations are automatically recorded as well.

    It would be really useful, especially when a certain cellphone provider keeps sending you bills for an account AFTER you cancelled their service. How the hell is one supposed to bust jerks like that without recording the conversation?

    Laws like this only encourage criminal conduct.

  • 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 dmuth (14143) <doug.muth+slashd ... m ['il.' in gap]> 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...
  • by YouHaveSnail (202852) on Tuesday April 13, 2004 @11:14AM (#8848330)
    Exactly what constitutes recording? Saving on magnetic media? Printing on paper? Storage in RAM? Storage in SRAM? Storage in human memory?

    The answer is important, since chat software "saves" conversations in RAM, at least as long as the chat window is open. I can preserve a record of a chat session for as long as I want by simply not closing the window. Given that fact, I would expect that all chat sessions are recorded, and therefore use of chat software implies consent by all parties to record the session.

    I suppose that if you're really concerned about this, you could strengthen that case by transmitting a statement immediately after starting a chat session along the lines of "This chat session may be recorded. If you do not consent to the recording of this session, disconnect from this session now."
  • by TwistedGreen (80055) <twistedgreen AT gmail DOT com> on Tuesday April 13, 2004 @11:19AM (#8848409)
    I really don't think this will pose much of a problem to employers, since they will undoubtedly already have a clause in either their computer/Internet use policy or your contract stating that either all of your work is the property of the Company, or any communication using Company-owned computing resources is the property of the company. And if you don't agree, then you either don't sign or don't use the Internet at work.

    Of course, in a smaller company where this is undefined, this kind of monitoring may pose a problem under this law... but otherwise I think that police surveillance is what is primarily going to be affected, not employer policies.
  • apple ichat (Score:3, Insightful)

    by ximpul1 (607679) on Tuesday April 13, 2004 @11:23AM (#8848466)
    IIRC apples ichat does this by default. looks like its time to call grandma and alert her to the breaking of the law by using that functionality.

    <ranting>
    seriously now, what are govt officials thinking? more recently about the gmail privacy issue (which is only made an issue by folks who dont understand it) and now this sillyness? and why is this post under the science section? yro maybe?
    argh!
    </ranting>

    from the article: " Why should e-mail be any different? Why should VOIP? Why should IM? IRC? SMS? Either communications are private, or they are not. To the Internet, packets is packets. Maybe its time for the law to make up its mind."

    IMO these mediums -should- be different bc they have different acuisition(sp?) methods.

    lets take email and snailmail for example
    to open another person mail is a crime. it involves using your hands or some tool to break the paper/cardboard that the item arrived in and view its contents.

    to open another persons email is an invasion of privacy which may involve simply turning the computer on. (auto email checking that puts a cute icon on teh screen, grandma clicks it and voila)

    IMO we need laws that accomodate and understand the technology, not make some half arsed RL relation to it.

    besides, if you think that your plaintext sent IM messages are ensured to be private to only you and your intended recipient then you really need to learn about el interneto. if ppl want that then use encryption!
  • by Loconut1389 (455297) on Tuesday April 13, 2004 @11:25AM (#8848484)
    I believe that online chatting is analogous to the beep on the phone. I think the argument should be that online chatting is implied consent to record. The -vast- majority of chat programs save the chat logs, sometimes automatically (ie gaim). I think if the court is going to rule that ctrl+a pasting is recording, then the network card and associated drivers are also recording, though deleting as it passes. When does having something in memory become storage? Is there a nanosecond clause to that law? (If you have the data in memory for more than one ns, then you are copying/recording?) If so, then what about video buffers? It stays in the video buffer as 'text', or in the memory behind the textbox values until the window is closed. Anyway, like I said, i think the chat box should be the beep.
  • by panda (10044) on Tuesday April 13, 2004 @11:25AM (#8848486) Homepage Journal
    ...is a failure to communicate.

    This really only applies to police making logs of chats and then whether or not those logs hold up in court.

    You aren't going to be prosecuted for keeping logs of all your online chat sessions. That is not what is in question here. Only time it matters is if your chat log could somehow be admissible as evidence in a criminal or civil court case.

    I also doubt you'd get in trouble for posting bits and pieces of a chat log on the web somewhere either. Anyway, I wouldn't go posting "private" conversations online without all parties' consent. It's rude to do otherwise.

    Also note, the article isn't about IRC here, but ICQ and AOL which are one on one chat clients for the most part. The law is talking about "private" conversations.
    • You aren't going to be prosecuted for keeping logs of all your online chat sessions. That is not what is in question here. Only time it matters is if your chat log could somehow be admissible as evidence in a criminal or civil court case.

      I also doubt you'd get in trouble for posting bits and pieces of a chat log on the web somewhere either.


      Citizen # 4317980A, your faith that your government will play by the rules has been noted. And believe me, we appreciate it.
  • by Ricdude (4163) on Tuesday April 13, 2004 @11:47AM (#8848824) Homepage
    "expectation of privacy"

    In a public forum, there is no expectation of privacy. People may record what you say. Get over it.
  • Too late. (Score:3, Informative)

    by blair1q (305137) on Tuesday April 13, 2004 @11:51AM (#8848884) Journal
    When you're using a chat, the conversation is already captured and recorded.

    It's merely deleted when it reaches the end of the buffer. But if the buffer is a ream of tractor-feed paper, it's only deleted when the paper is destroyed.

    Lawyers really need to learn how computers work, and stop mooting themselves by presuming technical unrealities.
    • Re:Too late. (Score:5, Insightful)

      by blair1q (305137) on Tuesday April 13, 2004 @11:58AM (#8849000) Journal
      And another thing:

      When you're on the telephone you have no presumption that your conversation is being recorded.

      Unless maybe you're talking into an answering machine or voicemail box, or have otherwise been informed that you are being recorded.

      When you're sending data on the computer, you know, because you've been told again and again that THE INTERNET IS NOT SECURE, that anything you transmit may be intercepted, recorded, retransmitted, stored, parsed, decrypted, or otherwise coopted. Your rights in this regard can be presumed to be limited to those you would have if you know someone has a legal copy of a document. Anything else the law has done to expand those rights is based on a fundamental failure to understand the fact that THE INTERNET IS NOT SECURE.

      I.e., it's not the copying and storing that's a problem. It's the uncopyrighted duplication to repeat to others that's a problem. Original copies are, as always, free to be transferred to others (and if they are, by law, not, then the law is, as always, a ass). But here's a hint for all the lawyers out there: the act of transferring a copy from hard disk to floppy disk is copying, and copying more than once, in the various hardware in the machine; destroying the copy on the hard disk doesn't change that; so you might have an out.
  • by Dausha (546002) on Tuesday April 13, 2004 @11:52AM (#8848902) Homepage

    By viewing contents on [your website here], you consent to monitoring and logging.

    Looks like a universal EULA similar to the above is needed just to not find oneself in violation of the law for logging anything.

  • by tomhudson (43916) <.barbara.hudson. ... bara-hudson.com.> on Tuesday April 13, 2004 @12:39PM (#8849495) Journal
    So the state requires both party's consent. Well, in the case of chat, or other electronic communications, to be able to even view the content, a copy has to be made in RAM (and there's likely to be a copy already on your hard disk in cache).

    So how is this different from a physical letter, in which the consent of the sender is presumed?

    So what you're doing isn't copying their conversaiont - you're making another copy of a pre-existing copy which they consented to.

  • medium blurring (Score:3, Insightful)

    by ca1v1n (135902) <.moc.cinortonaug. .ta. .koons.> on Tuesday April 13, 2004 @12:55PM (#8849716)
    This kind of thing would never be an issue with postal mail, because a tangible copy is made. By convention this is assumed to be true of email. Instant messaging blurs the lines. Thanks to the wonders of internet technology, we have modes of communication inherently unlike anything contemplated by legislative bodies at the time of the writing of these laws.

    What do appeals courts generally do to convictions based on laws that weren't written with the circumstances of the alleged crime in mind? They generally throw them out. Lets hope this holds, and also badger our legislators to allow recording of communications by those known by the speaker to be receiving them. Two-party consent lets the powerful screw over the little people and not be held accountable for it. It's arguably a first amendment violation, though apparently nobody has argued that lately, or at least not convincingly.
  • by jeffasselin (566598) <cormacolinde&gmail,com> on Tuesday April 13, 2004 @01:20PM (#8850061) Journal
    I guess it's too late to get modded up, but what the heck.

    New Hampshire, 2004. Brains are now officially forbidden in New Hampshire, said House spokesman Turner. The recent court decision forbidding recording equipment from capturing chat logs has essentially extended the ban on everything, from pen and paper to modern human brains. "This shouldn't cause too much problem, only a few people still had brains in working order within the state, anyway", said spokesman Turner. "Although you can still possess brains, you are forbidden to use them for recording any kind of information, so complete lobotomy is probably the only option unless you can produce a medical certificate to the effect that your brain is incapable (permanently or temporarily) of recording memories." The main character from Memento was recently seen in the state, and the state governor has announced plans to convert the state into a giant hospital for taking care of alzheimer patients - if he can remember giving the order.
  • 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 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.

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