Is Internet Chat Protected by US State Wiretapping Laws?

Depending on the outcome of two pending cases in New Hampshire and Illinois, US state law enforcement agencies may have to revise their methods when investigating and collecting information on individuals from Internet chat rooms. Under state wiretapping laws, evidence acquired through software that "recorded" the Internet chat room conversations may be inadmissible in criminal proceedings. In the New Hampshire case, Judge Merrill of Rockington County Superior Court decided to exclude key evidence in a computer solicitation case. According to a report from a local television station in New Hampshire, the accused, Roland Macmillan, had been scheduled to appear at trial on charges of using a computer at a public library to meet a 14-year-old girl for the purpose of sex. While arranging the rendezvous, Macmillan unintentionally chatted with an undercover police officer who "recorded" the chat room conversation. However, the evidence was declared inadmissible because it was obtained contrary to the state's wiretapping and eaves-dropping statute – which requires the consent of all parties to any recording. The county attorney is reported to be considering an appeal. In the Illinois case, yet to be tried, the accused, Kevin Coan, has indicated that, on very similar facts to that of the New Hampshire case, he will argue that the evidence against him was illegally obtained. Coan was accused of attempting to arrange a sexual encounter with an underage female via an Internet chat room before being charged by an undercover police officer posing as the minor, and using specialized software to record the conversation. The Illinois Eavesdropping Act prohibits the use of an "eavesdropping device," that is, "any device capable of being used to hear or record oral conversation or intercept, retain, or transcribe electronic communications whether such conversation or electronic communication is conducted in person, by telephone, or by any other means." As with the New Hampshire statute, the consent of all parties to the communication is required before it can be recorded. One commentator has suggested that there is a realistic chance of success for the argument. A trial date has been set in April. From a policy perspective, the cases raise the question whether the law views Internet chat rooms as a public or a private space. To view the New Hampshire and Illinois eavesdropping laws, see: http://www.gencourt.state.nh.us/rsa/html/LVIII/570-A/570-A-2.htm; or http://makeashorterlink.com/?U270521B7. For more information, see: http://www.thewmurchannel.com/news/2886945/detail.html; or http://www.siliconvalley.com/mld/siliconvalley/news/local/8152945.htm. Summary by: Colin Adams