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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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  • 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.
  • 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.
  • 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?
  • Active vs. Passive (Score:2, Informative)

    by normal_guy (676813) on Tuesday April 13, 2004 @10:49AM (#8847988)
    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.
  • 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?
  • 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.
  • Courtroom evidence (Score:1, Informative)

    by Anonymous Coward on Tuesday April 13, 2004 @10:55AM (#8848080)
    A videotape of the computer screen showing the chat conversation taking place, constitutes irrefutable evidence since the jurors can plainly see the person typing on the keyboard at that end, and the text of the conversation scrolling along.

    A simple textfile of the chat log can be far too easily fabricated, tampered with, manufactured false evidence, etc, and will get torn apart by the other side's attorney in court.
  • 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.

  • RTFA (Score:5, Informative)

    by rarose (36450) <rob@rob[ ].com ['amy' in gap]> on Tuesday April 13, 2004 @10:58AM (#8848122)
    If the program has a "Save function" then the Judge ruled the user has a lower expectation of privacy than if the program doesn't have a "Save function".

    The case at hand involved software that didn't have a built-in save function, but the cop used a camcorder and another software package to record the session.
  • by DAldredge (2353) <SlashdotEmail@GMail.Com> on Tuesday April 13, 2004 @10:59AM (#8848137) Journal
    Because they didn't get a warrent. Nothing is stopping them from getting a warrent.
  • 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?
  • 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.

  • Re:Troublesome how? (Score:4, Informative)

    by joonasl (527630) <.if.iki. .ta. .nenityyl.sanooj.> on Tuesday April 13, 2004 @11:06AM (#8848231) Homepage
    This maybe be true in some countries, but there are different views on this subject. Eg. in many European countries it's illegal for the employer to open and read employees (personal) emails. Electronic mail is viewed to fall under the same kind of privacy as conventional mail.
  • 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 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.
  • 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).
  • 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:Not in Texas! (Score:2, Informative)

    by ZX-3 (745525) on Tuesday April 13, 2004 @11:55AM (#8848948)
    This site has a summary of which states have laws requiring all parties to consent to recording of conversations:
  • 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.
  • 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.
  • by Anonymous Coward on Tuesday April 13, 2004 @01:07PM (#8849894)
    With all the bad press lately regarding Perverted Justice, I can see that this ruling may put an end to their tactics. There is a full write up on Perverted Justice and how they hinder law enforcement efforts to nab predators on Chatmag []
  • Re:Relevance (Score:3, Informative)

    by Carnildo (712617) on Tuesday April 13, 2004 @01:47PM (#8850410) Homepage Journal
    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 all recording of conversations, but the term hasn't changed.
  • by SymphonicMan (267361) <`moc.namcinohpmys' `ta' `hcird'> on Tuesday April 13, 2004 @01:53PM (#8850478)
    Way to tamper with evidence. You might have wanted to post that anonymously....
  • Re:Relevance (Score:2, Informative)

    by pdp0x14 (724933) on Tuesday April 13, 2004 @01:58PM (#8850543)
    A list of states with their number of party consent requirement is available here. []
  • by Minna Kirai (624281) on Tuesday April 13, 2004 @02:30PM (#8850978)
    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?
  • 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."