] 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.
Ok, I see what they are doing: IMs are 2 party point to point conversations, like phones. This raises more questions than it answers.
-What about conference calls? Do you still only need 2 of the parties to consent? (in 2 person states, GA is 1 person).
-How does consent factor into a chatroom, arguably the digital equivlent of a conference call?
-Personally I dismiss an IM conversation is like a telephone call. Its more like sending telegrams to each other. I wonder how consent applies to telegrams: Is it illegal to keep a copy of a telegram without 2 part consent? Or is the very natural of sending someone a message as a block a consent to store a copy?
-I argue the very nature of Chatrooms and IMs are so different than telephone calls, you can't *not* violate 2 party consent. From the end user prospective, voice communication is stream based. You either hear it or you don't, and would have to ask for the data to be repeated. The consent laws basically say you can't "cache" this data for later, by recording the stream, without permission from 1 or both parties.
However IMs and Chatrooms are not stream based, they are block based (Hence the telegram analogy). They work by giving you a copy of a block of data, and you can examine the block now, or X seconds in the future. I violate the consent laws by simply not being at my computer to get an IM, since it is "saved" until I read it. Blocks, unlike streams, can't be parsed/understood/read in realtime. They take an amount of time to read the entire block. There is no way to have block communication without storing a copy for some length of time. Yes, a digital TDM phone switch copies the voice bits in the frames, but this is such a fine granularity, at the single bit level for T1 lines.
-Furthermore, the infrastructure itself causes me to violate the laws without even knowing it. My computer could swap the IM in RAM to disk. I could have store and forward proxies setup, that will make a copy. Hell the TCP IP stack is making lots of little copies in case packets are lost in route. This is different than the copies made of a voice stream by the telephone network. IMs/Chatrooms are having parts or all of the messages copied.
Can the consent laws as written even apply to IMs and chatrooms?
Chat, Copy, Paste, Prison