Online Chat Case Raises Questions About Privacy Law

January 14, 2000

By CARL S. KAPLAN

Judge Says Recording of Electronic Chats Is Legal
n 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.

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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."
Hannibal, one of the defense lawyers, said that if his client was convicted after trial next month, he would appeal the denial of the move to suppress the evidence.

Online chat is by its nature a very unguarded kind of discussion.

Walker, the deputy county prosecutor, said she was pleased by the decision. She added that she argued before the judge that if the all-party consent privacy act applied to e-mail, it would "wreak havoc" with e-commerce in the state.
"Just think: If you and I communicated by e-mail or ICQ, once I received your message I couldn't copy or forward it without your permission," she said. "If I e-mailed a purchase order to you, you couldn't print it out unless I gave you permission."
Marc Rotenberg, director of the Electronic Privacy Information Center, a civil liberties group in Washington, said he believed the court's ruling was slippery.
"Obviously, from a privacy viewpoint, the principle underlying the two-party consent rule should be applied on a technologically neutral basis," he said. "There is a fairly clear line of federal cases that points to the continued protection of personal communications, regardless of the technology at issue."

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But other experts disagreed. Andrew Grosso, a Washington lawyer who specializes in Internet-related matters and who was once an assistant federal prosecutor, said that as a matter of common sense, e-mail messages are not the same as a telephone call. "The [e-mail] medium automatically records what is being communicated," he said.
Clifford Fishman, a law professor at the Catholic University of America in Washington and an expert on eavesdropping and wiretapping laws, said he thought Judge O'Connor's decision was a good one.
"If I were the judge, and assuming the statute let me, I would rule that what a person says on e-mail is like what a person says on a telephone answering machine," Fishman said. "In both cases, the person knows that the message is being preserved in a permanent form, and he can have no expectation that what he has recorded will stay private."
One lawyer who was familiar with the court's decision took issue with Judge O'Connor's lumping together of e-mail and chat communications.
Jeffry K. Finer, a criminal defense lawyer and a visiting professor at Gonzaga Law School in Spokane, said he agreed with the court that Townsend implicitly consented to the recording of his e-mail, because e-mail messages have to be stored on a hard drive. But chat messages, he added, may or may not be recorded, depending on the software. Consequently, he said, Townsend could not have given implied consent to Keller's storage of the ICQ notes.
Moreover, said Finer, online chat is by its nature a very unguarded kind of discussion, not at all like a deliberative e-mail or a message left on a phone answering machine.
"It's a spontaneous, back-and-forth, written conversation, like a private conversation at a party," he said. "That's exactly the kind of private conversation the privacy law in Washington was designed to protect -- spontaneous utterances that are nobody's business."
CYBER LAW JOURNAL is published weekly, on Fridays. Click here for a list of links to other columns in the series.

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Spokane County Superior Court
ICQ
Revised Code of Washington, "Intercepting, recording or divulging private communication," Section 9.73.030
"Privacy in Cyberspace," a fact sheet posted by the Privacy Rights Clearinghouse

Carl S. Kaplan at kaplanc@nytimes.com welcomes your comments and suggestions.

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