The Legality of Recording an MSN Messenger Chat

Having other parties present while chatting will diminish your expectation of privacy.

The legality of recording a MSN Messenger chat session will depend on the circumstances leading to that chat conversation, the factual scenario surrounding that conversation and the state, or states where the conversation took place. Common wiretapping laws have not been applied to online chat recordings in most states, so the situation surrounding the recording of the chat session may dictate the legality.

Federal Wiretapping Law

Federal wiretapping law prohibits the interception or disclosure of any wire, oral or electronic communication. Federal wiretapping law may prohibit the third party interception and dissemination of private chat sessions. However, this is most likely not applicable when the party recording the MSN Messenger chat session is one of the parties taking part in the chat session. Federal wiretapping law also may not be applicable in certain instances, such as when a parent is recording a chat session in order to monitor the online behavior of her child.

Expectation of Privacy

Because the recording of online chat sessions is not a settled matter under United States law, it is likely that any court addressing the issue would examine the expectation of privacy in the chat session. If the chat session took place in a public chat room, or with many parties present, the court might hold that the expectation of privacy was limited and that recording of the chat session was lawful. On the other hand, if the chat session was private and it was not otherwise being recorded by computer software, the court might hold that the parties had an interest in their chat conversation remaining private.

State Law

The state, or states in which the MSN Messenger chat session took place will also have laws that may dictate the legality of recording a chat session. In the following twelve states it is only lawful to record a conversation if all parties to that conversation have given consent: California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire, Pennsylvania, and Washington. In all other states, only one party must consent in order for it to be lawful to record a conversation.

Consent

In determining the legality of recording a MSN Messenger chat dialogue any court will look to the issue of consent. If the chat software automatically records the conversation, or if the other party tells you that they are recording the conversation, the court may hold that you have consented to any recording that takes place. Alternatively, if the chat session was recorded through the use of spyware, courts may be less inclined to allow the chat session to be used as evidence. A Florida court ruled in 2005 that a chat session recorded with spyware was inadmissible in state court.

References

• Private Investifation Network: Covertly Recording Telephone Conversations
• Legal Lad: The Legality of Recording Conversations
• Tech Dirt: Is An Internet Chat Transcript An Illegal Eavesdrop?
• Lawyers.com: Recording Telephone Calls and Wiretapping
• Cornell University Law School: US Code Title 18 > Part I > Chapter 119 > § 2511

Resources

• Reporters Committee: Can We Tape?
• Talkleft: Court Rules Wiretap Law Applies to Spyware, Blocks Introduction of Chat Transcripts
• Internet Business Law Services: Online Eavesdropping Violates Privacy