Record a chatroom conversation, violate the law? [priv]

[Declan McCullagh <declan () well com>]

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.

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