IM a wiretapper

We’re all familiar with the FBI warnings at the beginning of videotapes and DVDs that warn about illegally recording the content. Maybe we’ll soon see such a warning when we open our instant messaging clients.

A recent ruling by a New Hampshire judge threw out a police detective’s capture of an IM conversation using a separate recording tool because the judge felt that the state’s wiretap laws had been violated (New Hampshire is one of several U.S. states that require consent from all parties to a conversation before a conversation can be recorded). However, another New Hampshire judge ruled in a similar case that the content of chat room conversations were admissible because the content logging was part of the application used by the defendant and the police.

I believe that the difference between the two cases is more hair splitting than anything else, since the only substantive difference between the two situations is that in the first case the archiving technology was a third-party add-on, while in the latter case the archiving capability was integral to the product. Further, I believe that the New Hampshire Supreme Court and/or the state’s legislature will rule that archived IM conversations are exempt from the state’s wiretap laws.

The impact of all of this on enterprises could be twofold. First, simply as a means of protecting themselves against accusations of violating wiretap laws, enterprises might decide that the best course of action is to automatically include a disclaimer in all IM and chat room sessions that the content will be archived, allowing participants to opt out before the fact. Secondly, some enterprises might be motivated to disallow IM for business use because of concerns over accusations of violating wiretap laws.

On balance, I don’t believe that the New Hampshire decision will be far-reaching, but it should make IT managers – particularly in those enterprises in which there are consumer-grade IM clients – motivated to upgrade their systems.

I’d like to get your thoughts on this issue. Please drop me a line at mailto:michael@ostermanresearch.com