BC Law IPTF Blog

I was browsing through Massachusetts Superior Court slip opinions during this mind-numbing LexisNexis training, and I came across Commonwealth v. Maccini, No. 06-0873, slip op. (Mass.Super. April ___, 2007). This is a typical child pornography case where a cop in Ohio entered a few chatrooms and was solicited by a guy in Massachusetts who then sent him child porn.

The defense is that the child porn should be suppressed because interception of that material is in violation with the Massachusetts wire tap statute. Well, that fails because the communications were “tapped” in Ohio, and therefore the Massachusetts statute doesn’t apply. Furthermore, generally e-mail is treated more like postal mail than phone conversations, and so most courts don’t apply wire-tap statutes anyways.

Here’s what Judge Fabricant thought about it:

The question presented by this motion is whether the defendant’s e-mail and instant message communications were unlawfully intercepted within the meaning of the statute. The Court concludes that they were not, for each of two distinct reasons: First, Haueter received and recorded the communications not in Massachusetts, but in Ohio, where he was not subject to the Massachusetts statute or any similar statute; and second, Haueter’s receipt and recording of the defendant’s communications was not secret, but rather was with the defendant’s knowledge and implicit consent.

In explanation:

In State v. Lott, 152 N. H. 436, 439-442 (2005), the Supreme Court of New Hampshire applied a statute similar to ours to facts virtually identical to those presented here. After thoroughly exploring the nature and characteristics of electronic mail and instant messaging, the Court concluded that the defendant there, by using those methods of communication, “as a matter of law, consented to the recording of his communications,” because recording on a computer is inherent in such communications. Electronic mail, the Court reasoned, is essentially the equivalent of leaving a message on an answering machine; one who sends an e-mail anticipates that it will be recorded. Lott, supra, 152 N. H. at 441, citing State v. Townsend, 57 P. 3d 255, 260 (Wash. 2002). See also United States v. Maxwell, 45 M. J. 406, 418 (U. S. C. A. Armed Forces, 1996) (likening e-mail to sending a letter; sender retains no control, and no expectation of privacy). Instant messaging, similarly, is automatically recorded on the recipient?s computer. The recording remains as long as the chat window is open, and may remain indefinitely if the recipient uses any of various options that are inherent in the instant messaging program to preserve it. Lott, supra, 152 N. H. at 441, citing State v. Bouse, 150 S. W. 3d 326, 329 (Mo. Ct. App. 2004). One who uses these methods of communication, the Court concluded, is on notice of the inherent recording, and implicitly consents to it. Lott, supra. The Lott case, although not binding on this Court, is persuasive, and this Court adopts its reasoning to reach the same conclusion.

So, again, it’s OK for the government to search and seize your electronic communications. Basically, once you send a message to someone else, you do it knowing that they are keeping a copy of it. But does that mean that it’s not private? Does that mean you don’t expect them to send it to the general public? This case doesn’t get into any “expectation of privacy” reasoning; it avoids it altogether. But it’s still a good summary of the current state of the law, pre-Long, and that’s why I’m posting on it.

This entry was posted on Thursday, May 24th, 2007 at 11:08 am and is filed under Massachusetts, Privacy, Technology. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.