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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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so, Posting IM conversations with random morons can get people in trouble? Where's the justice?
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?
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.
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.
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//
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
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.
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."
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
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
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).