http://www.securityfocus.com/printable/columnists/233 Chat, Copy, Paste, Prison By Mark Rasch Apr 12 2004 11:19AM PT 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. On August 22, 2002, 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. We all know what happened next. A man named Roland MacMillan also signed on to the chat room, and solicited what he believed to be the 14-year-old for sexual acts. Shortly thereafter Mr. MacMillan was arrested. 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. ... _______________________________________________ Politech mailing list Archived at http://www.politechbot.com/ Moderated by Declan McCullagh (http://www.mccullagh.org/)
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