NH judge throws out paedo chat-log evidence

Chat, Copy, Paste, Prison

I Fought the Law and the Law Lost

The case exemplifies the oddities that form when technology and lawyers meet. There was nothing unlawful about Detective Warchol posing as the fourteen-year-old girl and engaging in the conversation - at least not under established U.S. law, which permits police to deceive, defraud and outright lie during criminal investigations. Similarly, there was nothing unlawful about his reading the conversation, or later testifying about the conversation he had with MacMillan. The crime was in making the recording without consent.

Clearly Detective Warchol consented to the recording he made, and MacMillan had little expectation of privacy in the chat session. But New Hampshire, like many other US states including California, Connecticut, Delaware, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, Pennsylvania and Washington, requires all parties to the communication to consent to a recording before it is legal. And MacMillan, while engaged in the conversation with the putative 14-year-old, did not consent to recording the conversation.

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.

The cases however ignore that fact that the concept of "recording" a conversation consisting of "packets" may make little sense. The packets are forwarded by routers and are automatically stored - at least temporarily - in the receiving machine's random access memory. Should converting this volatile memory to non-volatile memory be a felony? We need to get beyond the technology itself (AOL vs. ICQ) and ask whether there are legitimate expectations of privacy that we seek to protect by either permitting or refusing to permit the creation of a permanent record of communications.