http://science.slashdot.org/article.pl?sid=04/04/13/1356216&mode=thread&tid=123&tid=99 This has enormous ramifications! I have to believe this will be overturned, I mean chat is a public forum! 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." >From the article: Detective Warchol -- in keeping with good evidentiary procedure and knowing that the record of the conversation would be important to preserve -- used screen capture software to essentially make a "video" of the online chat room conversation. The software created a record of the chat session that did not previously exist. The New Hampshire detective then transferred this "recording" to another computer for both preservation and analysis by essentially copying and pasting. It was this capture and recording which was used against MacMillan in court -- or, at least, was almost used. Before trial, Mr. MacMillan's attorney filed a motion in limine to suppress the results of the recorded conversation as a violation of the New Hampshire wiretap statute. You see, New Hampshire law makes it illegal to engage in "the aural or other acquisition of, or the recording of, the contents of any telecommunication or oral communication through the use of an electronic, mechanical, or other device" without consent. MacMillan's attorney argued that the making of the recording violated this statute. While the U.S. federal wiretap law, the U.K Regulation of Investigatory Powers statute, and many U.S. state laws provide a similar definitions of "interception" and unlawful interception, the New Hampshire statute requires that the recording of the conversation be made with the consent of all parties of the conversation -- not just one of the parties. Thus, the New Hampshire judge had to decide, essentially, two questions: did the Detective make a "recording" of an electronic communication, and was this done without the consent of one of the parties? The answer to both of these questions was, yes. On February 23rd, Rockingham County Superior Court Judge Robert Morrill ruled that the results of the copy and paste were an unlawful wiretap, and that they could not be admitted into evidence. He could have gone further and found that the policeman committed a state felony by both making the initial screen capture, and again by transferring it to the other computer, and again when he "disclosed the contents" of the illegal copying either to the prosecutor or to the court. Judge Morrill concluded that, "If Detective Warchol had not taken these acts, the words of the online communication would no longer exist after the program was exited or the computer was shut down." This was not to suggest that the police could not have "captured" the communication -- only that they could not have done so without either a warrant or the appropriate Attorney General approval. ... It is useful to contrast the MacMillan case with one in 2002 in Washington state which has an even more stringent all-party consent statute. In that case, Donald Townsend engaged in an ICQ session with what he believed to be a 13-year-old girl, but was in fact an undercover police officer. In permitting the introduction of the recorded ICQ session, the court noted that the ICQ technology itself had a default setting to make a permanent record of the conversation. The court found that since Townsend should have known about the default setting, he effectively consented to the making of the recording under Washington's all-party consent statute. 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. --
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