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Eavesdropping on the Internet

12.04.2005

|  Kagan Odia

A Florida Court of appeals held that Instant messages recorded by a spyware program without the knowledge of the party chatting are inadmissible in Court. What is the legal situation in Israel?

Is an online chat room log, acquired by installing a spyware or keylogging program, admissible in court? The Florida Court of Appeals said: No.

 

The issue arose during divorce proceedings between Beverly and James O'Brien. Having suspected her husband, Ms. O'Brien installed Spector, a spyware program, in Mr. O'Brien's computer. The program recorded all the e-mails and instant messages he sent and received, every website visited using his computer etc.

 

The logs produced by the program included conversations of a personal nature which Mr. O'Brien conducted with another woman in an online chat-room. Mrs. O'Brien intended to admit the log of those chats as evidence for her case in the divorce proceedings.

Inadmissible evidence

 

The District court held that the evidence is inadmissible as it was acquired unlawfully. The Court held that the procurement of evidence by installing spyware is an illegal interception of communication, infringing the Florida Security of Communications Act.

 

The Act states that an intentional interception of electronic communications without permission is a criminal offense.

 

In her appeal to the Court of Appeals, Mrs. O'Brien argued that her actions did not constitute an interception of communications. She argued that the Spector program did not intercept the messages in-transit to and from the chat-room but rather continuously recorded every message appearing on Mr. O'Brien's computer screen. Information appearing on the screen, argued Mrs. OBrien, had already been stored in the computer's memory and thus, does not constitute "real-time interception".

 

For the purpose of "interception" the Florida Security of Communications Act does not distinguish between the interception of communications contemporaneously and interception after the communications had been stored. However, as this was a first-impression issue in Florida, the Court of Appeals turned to case law handed under the Federal Wiretap Act, after which the Florida Act was modeled.

 

The Federal Wiretap Act, a part of the Electronic Communications Privacy Act of 1986 prohibits the interception of communications "in transit", namely contemporaneous interception. The Court held that in this case the interception is unlawful because the communications were still "in transit" rather than "stored". The Court reasoned that since the time period between the dispatch of a message and its storage in the computer (and recording by the spyware) was so evanescent that it was not sufficient to render the communications "in storage".

 

Objections to the decision

 

Those who oppose the decision argue that it is not consistent with precedents decided under the Federal Wiretap Act. An example is the Councilman case, in which an Internet Service Provider intercepted its customers' email messages in order to gain a commercial advantage. In this case, the Federal Court held that this does not constitute an unlawful interception because at the time of the interception the messages were found in temporary storage in the Provider's computer.

 

The Court of Appeals affirmed the lower court's decision whereunder the evidence acquired unlawfully would be inadmissible. This view follows the "fruit of the poisonous tree" which is prevalent in US evidence law. Under this theory, evidence acquired by unlawful means may not be introduced as evidence in trial.

 

And in Israel

 

It seems that if this case came before an Israeli Court, the judges would have not allowed the evidence to be admitted, but for different reasoning.

 

The Israeli Wiretap Law prohibits a person from eavesdropping on anothers conversation (that is, a conversation in which he does not partake) using a device, when such action is carried out without a permit or without the consent of a party to the conversation. Communication between computers is deemed a "conversation" for the purpose of this law. Conducting an unlawful wiretap is punishable by imprisonment.

 

The Law further states that in civil proceedings, recordings acquired by way of an impermissible wiretap are inadmissible. An unequivocal decision has yet to be given in Israel in the question of whether the interception of electronic messages constitutes an impermissible wiretap. In the Tzuberi case, the Supreme Court held that for the purpose of the Wiretap act, a wiretap is one that is conducted contemporaneously with the conversation.

 

In the later Badir Brothers case, the District Court held that pursuant to the amendment of the Law in 1995, where "communication between computers" was added to the definition of "conversation" under the Law the simultaneity requirement no longer applies. The determination is especially sensitive since with regard to such messages, the border between "transit" and "storage" is so thin that it is very hard to distinguish between the two.

 

If the case had been brought to court in Israel, Mr. OBrien would have been able to seek protection from the Basic Law: Human Dignity and Freedom as well as from the Protection of Privacy law, which prohibit the infringement of the confidentiality of a persons writings and correspondence, the usage of the content of such writings without the writers permission, and the usage of knowledge of ones private matters, for a purpose different that the one for which it was given. Under the Protection of Privacy Law, evidence acquired through infringement of privacy is inadmissible but the Court may make exceptions.

 


*Odia Kagan coordinates the IT and Internet law practice in Shavit Bar-On Nov Yagur Law Offices in Tel-Aviv, Israel and has been admitted to practice law in Israel, New York, England & Wales and New South Wales, Australia. Okagan@sbilaw.com

 

**The article was first published (in Hebrew) in YNET - Mar 22 2005.

 

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