Can You Go To Prison For Copying A Chat Transcript?
from the when-laws-and-technology-mix dept
Last month, we had quite a heated discussion concerning whether or not an internet chat transcript is admissible evidence for a court case. In the case discussed, the lawyer of someone accused of soliciting sex with a minor moved to have the chat transcript ruled out since he had never consented to being “recorded”. In a very similar case in New Hampshire, it appears that the same thing happened and the transcript was ruled inadmissible and it was ruled that the detective in question had made an illegal wiretap. The article we link to at Security Focus has a good analysis of the situation by Mark Rasch, where he points out that we may need to update our laws to reflect the technology – as right now, simply copying and pasting a chat transcript may be seen as a violation of the law. In fact, he points out that rules requiring companies to monitor employee chat and emails may create an impossible situation, where it’s both illegal and required to store chat transcripts. I still stand by my original assertion that since a text chat (even in realtime) is by nature an asynchronous form of communication (I can write something, and you can reply whenever you want), anyone using that format is creating the transcript itself – and thus, are consenting to the “recording.” Any form of asynchronous communication is naturally about creating a record of each side of the conversation – otherwise the conversation cannot occur. A synchronous conversation, however, has no record without special efforts being taken.
Comments on “Can You Go To Prison For Copying A Chat Transcript?”
chat is synchronous
the whole point to chat is to do so interactively. The trasncript in this case was in fact a conversation and not an asynchronous event. On top of all this, chat programs do not archive by default.
Re: chat is synchronous
I’m not sure I agree with that. There are plenty of times when I’m away from my computer and still receive instant messages – which I reply to at a later time.
And the “archive by default” aspect is a red herring – since they do archive by default on the computer of anyone involved in the chat. They’re right there on the screen – a full transcript.
Re: Re: chat is synchronous
on screen text is not archived. There is no permanent storage or retrieval available and is by its very nature (written to screen) temporary. The act of recording is the rendering of the conversation to a more permanent form.
Chat is synchronous because the connection among chat participants is a bidirectional connected path and even if you are not there in person, the chat app is there to accept the text synchronously. As opposed to email which polls for text periodically.
Re: Re: Re: chat is synchronous
Some chat programs do log all messages by default to files. I use Trillian at work and this feature has saved me plenty of times. Is this feature illegal? For every chat conversation do I have to tell the other person that the conversation is being recorded?
How about we take that red herring and beat the lawyers to a pulp.
No Subject Given
I often leave voice messages on someone’s voicemail and they reply on mine. I’m sure there’s a transcript of this somewhere, but I’d expect the due process of a subpoena to be required to get it. Just because the nature of using this tool is to leave a trail behind doesn’t mean that trail should be public.
Re: No Subject Given
Indeed. Don’t confuse what I’m saying. I’m not saying that the police should just have access to every chat transcript. However, if the police are part of the conversation, I don’t see why they can’t use it.
Re: Re: No Subject Given
By the very nature of an IM conversation, one should expect that it can and many times is ” cut & pasted ” and kept for future reference. I became aware of this when a coworker suggested I start archiving IM transcripts I was having with a superior that was abusing IM to state things he wouldn’t have had the balls to say to my face or in an email. ( Side note: I just chose to turn off IM and make that superior send his messages via email and he stopped using inappropriate conversation )
I also believe there are programs that can automatically archive IM conversations. Since I am not a big fan or user or IM programs I may be incorrect.
On the other hand, its quite easy to type up a page that looks like a chat transcript so I don’t know how much validity I as a juror or judge would place in a chat transcript.