Comment by jacquesm
15 years ago
Not really, since IMs are expected to be logged they can even be subpoenaed, but a recording made outside of a warranted wiretap would not be admissible evidence.
Ditto email, log files and so on, basically any textual communication is subject to subpoena, but the 'spoken word' is expected to be transient unless you have a microphone stuck in your face or have been warned very explicitly that one is present.
No that's not true. A private person can privately record any conversation he or she wants. (Remember Monica?)
Warrant requirements only apply to government action, meaning the government itself or someone acting on the government's behalf. If you talk to someone on the phone and that person records you on his own, without government inducement, then the court will consider the recording hearsay but admissible at trial under a few exceptions to the hearsay rule.
The world is larger than the USA, and twelve US states have laws forbidding the recording of private conversations without all parties consent.
Fair enough.
Do you know whether those prohibited recordings would be admissible as evidence in court, despite being non-consensual? Or is the weight of their prohibition that they are inadmissible?
Yes, but my point is that the written word now encompasses the kind of ephemeral that would never have been preserved in the past.
That's absolutely true, after all, IM messages are more on the level of 'brainfarts' than a carefully considered letter would be.
But since people are being sued and fired over tweets it seems safe to assume that those kinds of communications now carry the same weight as every other written form.
We agree about that - I'm just concerned that our technological ability is outpacing the responsiveness of our legal system. Like, imagine you were in court and someone pulled out a scrap of paper from 2004 saying 'gone 2 lunch, back in 15 minutes - Jacques' and then argues that you were actually gone for a full half hour, and that this calls your entire character into question. You're not wrong about people needing to be more careful; I just have reservations about the ramifications. I rather like the European approach that internet companies have a responsibility to wipe the data they host after a certain time rather than keep it online perpetually.
ps Ephemera, not ephemeral. Damn auto-correcting phone :-)
Not exactly correct, afaik, email to your lawyer is considered privileged and can't be subpoenaed.