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Save a Chatlog... Go to Prison?
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."
MIST : May I Save This ?
theefer
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.
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...
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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.
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?
Cruising the internet on my TI-99/4A @ a whopping 300 baud!
so, Posting IM conversations with random morons can get people in trouble? Where's the justice?
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.
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...
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?
Dewey, what part of this looks like authorities should be involved?
Under the Sarbanes-Oxley act employers are required to monitor and archive all electronic communications. There was an article 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 sounds an awful lot like a Your Rights Online topic.
This is the NFL, which stands for "Not For Long" if you keep making those bulls*** calls.
So, online games with logging to file features (Everquest, SWG, DAoC, etc) would fall under this ruling too? /tell features in the games should be considered as private as a chat session, this must suck.
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
Also considering that techsupport often asks for logs when reporting bugs/unusual behavior or cheating, would that make them accomplices after the fact?
What the poster probably ment was monitoring employee use of company facilities. Personal or not you shouldn't expect or have any privacy while using company computers.
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?
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.
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.
I hear there's rumors on the Slashdots
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.
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.
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?
You are in error. No-one is screaming. Thank you for your cooperation.
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.
--Rob
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...
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?
+++ATHZ 99:5:80
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.
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
//TODO: Think of witty sig statement
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.
"There is a terrorist behind every bush"
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.
>MIST: May I Save This?
CROW: No, you may not!
JOEL: Now Crow, don't forget, the user has rights too.
TOM: Nein! Jauhrtausand hand und garnele! Das userkind - they have no rights in this police state!
JOEL: Tom, that has absolutely no releveance whatsoever.
TOM: But it sure is fun to say it!
Striking fear in the authors of godawful fanfiction, I am here, appearing in darkness, Tuxedo Jack!
"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!!!
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."
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!
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.
"expectation of privacy"
In a public forum, there is no expectation of privacy. People may record what you say. Get over it.
How's my programming? Call 1-800-DEV-NULL
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.
What those who want activist courts fear is rule by the people.
"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.
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.
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
But do note that copyright is a separate issue from the chat logging issue.
(Dang, I sound like a stinkin' lawyer!) IANAL.
Fellowship 9/11
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.
"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)?
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.
How to solve most of our problems: 1.Lots of nuclear plants. 2.Cure aging.
You have no fundamental right not to be recorded. What you have is a right to *know* that you are being recorded when you are. The two party consent guarantees that both parties *know* that they are being recorded (or at least could be). The consent isn't giving anything away. It is just registering your knowledge of the situation.
The point is to keep people from being caught by such things as "Can you please read the following document?" where the document seems to be a fictional passage but when replayed in court later, it sounds like you are admitting some crime. Other examples exist as well (e.g. orally agreeing to something and changing one's mind later; with the recording, the oral agreement is a contract; without it, it's just air).
A written record of what happened is different. It does not bear the same weight as the recording in someone's own voice (although modern audio edit facilities may make this overblown, i.e. a recording might be faked almost as easily as a written transcript).
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.
If he explores all forms and substances Straight homeward to their symbol-essences; He shall not die.
Way to tamper with evidence. You might have wanted to post that anonymously....
There are any number of situations in which I would *like* to be recorded. For example, under current law, I can call an insurer and record my description of an accident. If recordings were *not* allowed, I would have to go into the insurer's office to sign a written report, further slowing an already slow process.
When I call an organization that records all conversations, I know that not only am *I* being recorded but that they are as well. Thus, I am protected from them misrepresenting my statements or their own.
That's not to say that there are not abuses. I'm sure that there are. However, there would be abuses if the information was missing as well. Consider the case of an unrecorded conversation that would explicitly clear me of something and reveal that the other party did it. Or a revised agreement that could have been recorded but wasn't; offer withdrawn before signing. So on and so forth. There are a lot of babies flying out with that bathwater.
I keep all my email and chat transcripts. Partly for the record and partly so that I have access to that info for future conversations (I have emailed someone an excerpt from a chat to save reformulating the info after they forgot). I do a lot of my work to spec, so I spend a lot of time with printouts of email marking off things that are done, making notes, etc.
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."