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Save a Chatlog... Go to Prison?

Posted by CmdrTaco on 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."

5 of 486 comments (clear)

  1. Relevance by andy666 · · Score: 5, Informative

    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.

    1. Re:Relevance by I+am+Kobayashi · · Score: 5, Insightful
      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.....

      --
      --Kobayashi--
  2. Re:Easy... by fdobbie · · Score: 5, Informative

    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?

  3. Re:Easy... by Nuroman · · Score: 5, Informative

    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.

  4. Re:Good luck stopping it. by Courageous · · Score: 5, Informative

    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//