PA Supreme Court Decides if Reading Email==Wiretap

An anonymous reader noted that "Excite is reporting that the Pennsylvania Supreme Court is taking up a case to decide the question may police look at a suspect's email and instant messages without first obtaining a court order. The defendant, a former police officer, is also claiming his Fourth Amendment privacy rights were also violated. The outcome will only affect Pennsylvania but the issues at hand may eventually reach the US Supreme Court." Umm... Duh?

Comments

duh???

[craigeyb]

This is by no means an obvious case. The difference between intercepting Internet communications and, say, communications on a phone line, is that the Internet is inherently unsafe, and information is publicly available. Every packet you send can be examined along each router through which is passes.

Re:duh???

[GreyPoopon]

It's even worse than that. I can't believe that the PA Supreme Court is willing to hear the case. The prosecution got their evidence FROM THE GIRL. Let's put it into the proper light. Pretend that you are a 15 year old girl. Let's also pretent that I continuously send you mail through USPS with a nude photograph of myself (*shudder*) and I keep trying to get you to send me nude videos of yourself and engage in illegal sexual contact with me. If you take the mail I send you to the police, and they arrest me, would I be able to complain about violation of my privacy? Give me a break. If you want something to be private, don't send it in an email to someone else you can't trust.

Although the press may be making this case out to be a landmark "reading email == wire tapping" case, it really isn't. It would have been different if the police were intercepting his email before it got to its recipient, or using spyware to read it from his computer.

Re:duh???

[Rupert]

The (somewhat weak) defence argument is that IMs are transitory, like phone calls, and you can't log them without the permission of all parties involved.

Since anyone who knows anyone who uses IM knows that messages are routinely logged, this argument is basically a legal appeal against reality.

Oh, and I hope he loses.

Depends on how the IMs were acquired.

[base3]

The article doesn't make clear whether the instant messages that are being used at trial were made available by the girl (or her parent/guardian). The Slashdot headline seems to want to lead us to think that the police were sniffing the defendant's wire.

If that's not the case, then no "wiretap" has taken place--a party to the conversation turned over the logs to the police, and they are admissible at trial.

Re:Depends on how the IMs were acquired.

[Gaijin42]

I started out agreeing with you, however on further reflection :

I believe the two party rules talk about if you are allowed to record a communication or not (As was the case with linda tripp). However, with Email, or IM, a recording is inherent in the process. (Well, ICQ automatically saves history, others may as well)

In this case, no two party permission would be required to record, because it is implicit in the medium. Rather like sending a letter, of course you have a copy.

Then the argument turns to if turning over a legally made recording is okay. I again refer to the snail-mail metaphor. If you mail me something, is it mine to show to whoever I want? (Assuming there isn't an NDA or something around - and in this case, an NDA would be voided, because a contract which prevented diclosure of illegal acts would be void) I believe the answer is yes, once a recording exists from a legal source, any one in possesion of that recording can show it to whoever they want.

Therefore the emails can be turned over wihtout any issues.

Re:Depends on how the IMs were acquired.

[Rogerborg]

• The article doesn't make clear whether the instant messages that are being used at trial were made available by the girl

It's a good point, but it reads as being most likely that they were obtained by the entrapping agent, after the victim's emails were handed over.

In either case, the messages were submitted to law enforcement and then as evidence after reaching the intended recipient. No third party tap took place. As you say, this isn't a wiretap issue. It's arguable that you might have a reasonable expectation that an IM (but not an email) would not be recorded. Given that most IM clients have one click session logging though, it's rather stretching the argument. If the guy asked if the "girl" was logging it, and the agent lied, then he's got a good chance, but I doubt very much if he did.

It'll be interesting to see what the court makes of the IM's, but email simply has to be viewed as persistent. The recipient gets a persistent copy, you know they do, and you really can't have a beef about it being submitted as evidence. Hopefully the conviction can stand just on the email evidence, regardless of how they rule on the IM.

Re:Depends on how the IMs were acquired.

[Tackhead]

> If that's not the case, then no "wiretap" has taken place--a party to the conversation turned over the logs to the police, and they are admissible at trial.

IMNSHO, the article makes it pretty clear that the cops didn't sniff anything. The girl called the cops and turned over the logs.

The scumb^H^H^H^H^Hdefendant then pulled the same stunt chatting to a detective posing as another girl. Even if the initial logs weren't admissible, the logs of this conversation, IMNSHO, would be, as they were part of an investigation. (It ain't entrapment, since Joe Scumbag wasn't asked to solicit sex from the detective - Joe did it all by himself. Yes, I'm presuming a basic level competence on the part of the cops here. "How not to entrap" is something they teach in Cop School 101.)

The only reason I can think of that the first logs wouldn't be admissible is because (unlike phone messages) IM logs can be trivially forged (think "5 minutes with a hex editor", if not "30 seconds with a text editor", and might constitute "hearsay" and thus be inadmissible.

If (very plausibly!) the girl didn't know how to forge the logs, and/or she testified that the logs weren't forged, I'd say there's still enough to get a court order to ask the IM server if, indeed, messages were sent.

So we pick up the trail from there. Maybe the IM server only knows that a message went from IP address xx.xx.xx.xx to yy.yy.yy.yy on a certain date/time (and knows nothing of the content of that message). But if all of those entries match the date/timestamps on the girl's logs, and if the ISPs, when asked (via another court order) "which of your users had these IP address at these times" answer "Joe Scumbag was on xx.xx.xx.xx at that date" and "Jane Doe was on yy.yy.yy.yy at that date", and Joe's ISP says "The radius logs show that xx.xx.xx.xx was logged into via his account and his phone number, and the phone company's logs confirm that someone from his house called his ISP at that time", I'd say you have a pretty open-and-shut case.

To summarize, saying "I got an ICQ message" might not be admissible.

Saying "I got an ICQ message, AOL's logs confirm it, the ISP's logs tell me who it was, and where he called from, and the phone company's logs confirm it" is another kettle of fish entirely.

Under some circumstances, I might have reasonable doubt that someone forged an ICQ message.

But I cannot fathom anyone 31337 enough to forge an ICQ message, an ICQ-message-sent log on AOL's server, steal Joe Scumbag's password to dial in to an ISP using his account, hack the ISP's Radius server logs to reflect Joe Scumbag's phone number instead of 37337-h4x0r's number, and then hack the local phone provider's logs to make it looks like Joe Scumbag was on the phone to his ISP at that time.

I'm not alleging that the trail of evidence in this case is anywhere near as bulletproof as in my extreme hypothetical example. All I'm saying is that anyone who thinks an IM log can be dismissed as hearsay is... well, not thinking far enough ;-)

(Next up -- when can we expect law enforcement to apply the same treatment to Joe Spammer? Surely sending spam for "HOT BEASTIE WOMEN" to 15-year-old girls is just as bad. You listening, Mr. Spammer in Dallas-Ft.Worth and Michigan?)

The law doesn't discriminate against "easy"

[drew_kime]

"Every packet you send can be examined along each router through which is passes."

And every phone call you make can be examined at any of the TELCO offices through which it passes. Your point being?

Oh, maybe you thought that just because it is somewhat easier to snoop internet traffic that it is therefore OK. The whole point of protections against unwarranted search and seizure is to say that the authorities aren't even allowed to try.

Duh?

[Rogerborg]

Duh? In what way? To me this looks pretty clear cut: this evidence - in this case - was 100% admissible, because it's not a wiretap. And here's why.

When making a phone call, you have a reasonable expectation that it is not being recorded. That's why law enforcement needs a wiretap order.

When sending a snail mail letter, you do not have a reasonable expectation that there will be no record of it after it has been received, nor that the recipient will not give it to law enforcement of their own free will, after they have received it. You have a reasonable expectation that it will not be intercepted in transit, but once it reaches the recipient to which you sent it, it's in their possession, you know it's in their possession, and it's fair game.

Pop quiz: do emails that you receive:

• A: Automagically evaporate after you have read them?
• B: Remain on your machine as long as you want them to?

Given that you've ever received an email and know the correct answer to this, do you have a reasonable expectation that an email that you have sent will not be used by the recipient as evidence?

Perhaps Slashdot editors could consider taking a minute to read the article before kneejerking a commentary. I know it's a common lament, but this case is open and shut. The guy sent emails soliciting sex from a minor. The emails that he sent were given by the intended recipient to law enforcement after they were received. There was no wiretap. Perhaps the sender really was dumb enough to expect that there would be no record of his emails after they were received , but that was an unreasonable expectation, given that he was clued enough to send an email.

It's an interesting case, but it's really not about wiretapping or privacy or the evil feds. It's about a child abuser who was really dumb and got caught. The fact that it involves emails is neither here nor there - he might as well have been sending snail mail letters.

Are we all quite clear on that now? Please, please, please, read the news story before responding.

Re:Question

[Pedersen]

I wonder if these 12 states consider a defendant giving permission to recording phone calls or releasing IM logs to be a sort of self-incrimination, thus violating the 5th Amendment?

Note that the 5th Amendment only states that you are not required to testify against yourself, not that you are not allowed to do so.

As such, a defendant giving such permission is simply waving his 5th amendment rights. Which makes the laws make even more sense. After all, if you don't know you're being recorded, aren't you possibly being tricked into testifying against yourself, and thereby being forced to give up your 5th Amendment rights?

Re:A no brainer

[nanojath]

I think you're judging the merits of a different question. Unfortunately this article is not really clear. But I believe from the wording that the real issue under discussion is whether someone can make internet communications available to the police without obtaining consent from the other participant in the conversation.

In most places the question is moot. You have a legal right to record an electronic communication with or without the other participant's knowledge or consent. An UC cop can record conversations or pose as a 15 yr-old in a chatroom, this does not require a warrant (I don't know if the cops need a warrant to send in someone wearing a wire. Anyone?)

In PA, on the other hand, you cannot record a telephone conversation without the consent of the other party - it is a technical wiretap even if the recording party is not a cop. Mr. Pedophile X-Cop is arguing that his e-mails and chats to the girl and UC cop are under the same protection. Prosecution is saying bullshit, anyone knows that by its very nature e-mail and IM is "recorded" - that a non-ephemeral record of the conversation exists by default.

Personally, I agree with the state. I don't think there is a reasonable expectation of the privacy of communication of this nature, if one of the parties involved chooses to make that communication public. If the cops were siezing this information from the ISP, or Mr. Pervert, or the 15-yr-old without warrant or consent, it would be a different story.

So with all due respect, I think you're wrong. This is just another ped asshole trying to sleeze out from under just consequences on a technicality.

Re:More Stupid Judges Making Stupid Analogies

[Rogerborg]

• A show of hands please...who here has to log into their answer machine to get messages

You're missing the point. When you send a message - particularly an email - you have to expect that the intended recipient will have a copy of it.

• The very notion that anything I e-mail to someone is available for downloading/printing by anyone but the receipient is a huge privacy violation.

Spot the guy who didn't even bother reading the story. If you bother to read it, you'll find that the email was submitted as evidence by the intended recipient, a 15 year old girl, and the IM's by the intended recipient, a law enforcement agent posing as a minor. At no time did law enforcement make a 3rd party interception or recording. The guy sent the messages. The intended recipients got them. The intended recipient submitted them as evidence. No wiretap. No interception. Go to jail, go directly to jail, do not pass go, do not collect $200.

Moderators, you might also want to read the story before applying your mod points. This is an important and emotive issue; let's be sure we have the facts before getting all riled up and picking the wrong side.

Read the article people!

[Aexia]

It has nothing to do with wiretapping laws. Let me repeat.

THERE IS NO WIRETAPPING OF ANY KIND INVOLVED IN THIS CASE.

The defendent is arguing that since the e-mails and IMs were recorded by the intended recipient without his consent(necessary by PA Law), they are inadmissable.

The prosecution argued (and the lower courts agreed) that the defendent had no expectation that the e-mail messages and IMs would *not* be recorded by the intended recipient because of the very nature of the two mediums.

That is the issue at hand. The police weren't sniffing packets or intercepting e-mails. The intended recipient of the e-mails and IMs voluntarily turned them over to the police. If he had snail-mailed the solicitations to the girl, he wouldn't even be bothering appealing.