Judge Says Recording of Electronic Chats Is Legal

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Forwarded From: jeradonah <jeradonah () flashmail com>

http://www.nytimes.com/library/tech/00/01/cyber/cyberlaw/14law.html

January 14, 2000

CYBER LAW JOURNAL
By CARL S. KAPLAN

Judge Says Recording of Electronic Chats Is Legal

In 12 states, it is illegal to record your own telephone conversations
without the consent of the person at the other end of the line. Now a
judge in Washington, one of those privacy-conscious states, has ruled that
the state's law does not apply to the new world of e-mail and online
chats.

That decision, which appears to be the first of its kind, represents a bad
precedent for online privacy, some legal experts say. But others argue
that e-mail messages by their nature are forwarded and stored on a
recipient's computer, so e-mail users automatically agree to the recording
of their messages when they choose the medium.

The novel legal issue of how to characterize e-mail communication arose in
a recent criminal case in Washington's Spokane County. The police there
said they received information that 26-year-old Donald Townsend was
seeking sex with minors that he met online. Setting up a sting operation
on the Internet, Detective Jerry Keller pretended to be a 13-year-old girl
named Amber with a Hotmail e-mail account and a screen name of
"ambergirl87," according to legal papers.

Detective Keller, in the role of Amber, sent messages to Townsend, kicking
off an e-mail exchange between the two parties -- about seven messages in
all, said Deputy County Prosecutor Patti Walker. In addition, "Amber" and
Townsend had a series of electronic conversations on ICQ, an Internet chat
network owned by America Online that allows users to communicate in real
time. While ICQ can be used to create a public chat room, the
conversations that took place between Keller and Townsend were private
chats that were inaccessible to others, the legal papers say.

Over three days last June, Townsend sent 86 ICQ messages to Keller, Walker
said in a telephone interview. In some of them, he "was setting up a date
with a fictitious 13-year-old and trying to have sex with her," she said.
Keller saved the ICQ communications on his computer and later printed them
out for use as potential evidence in the case, after Townsend tried to
meet "Amber"  in a bar. Keller also stored and printed out the e-mail
messages he received from Townsend. Townsend was eventually arrested and
charged with attempted rape of a minor, possession of child pornography
and other crimes.  Before trial, three Spokane County public defenders
made a clever motion: they sought to suppress the use of the police
print-outs of the e-mail messages and ICQ chats.

Under the Washington Privacy Act, argued Mark Hannibal, Kathleen Moran and
David Blair-Loy, there is a very strong prohibition on the interception or
recording of private communications by phone, radio, telegraph or other
device between two or more people without the consent of all of the
parties. This "all-party consent" rule makes Washington different than
most other states, where recording of a private conversation is lawful if
just one party consents.

In the Townsend case, the lawyers said, Washington's privacy law clearly
applied to private communications via a computer, which should be regarded
as a "device"  under the law. Also, since Kelly did not have a special
court order allowing him to record Townsend's online messages, and because
Townsend never gave his consent, the messages could not be used in a
trial, they said.  In a ruling last month, Judge Kathleen M. O'Connor of
Spokane County Superior Court rejected those arguments. She reckoned that
the Washington privacy law does not apply to computer communications
because the words of the statute do not specifically mention computers as
a covered device.

Judge O'Connor went on to conclude that even if the act applied in this
case, it could be said that the defendant implicitly consented to Keller's
recording of his e-mail and ICQ chat. After all, the judge said, Townsend
chose to "communicate via e-mail and/or ICQ . . . with the knowledge that
the computer itself is a transmission and recording device.

"From that knowledge, it may be presumed that the defendant knew that the
intended recipients of the conversation may retain and/or disseminate
messages received from the defendant," the judge wrote. "In an age where
millions of e-mails are sent daily, it is unreasonable for a user to
expect that a recipient will not save, transmit and/or copy an e-mail or
an ICQ (chat) communication."

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