Court ruling collides with firm’s technology


In business, being innovative is a place to find excitement (always) and profit (sometimes) — but it’s also a place to find legal uncertainty (when you least expect it). Consider p2pLog Software, a Salembased firm that makes a very cool little product that records instant message (IM) conversations. Earlier this year, a New Hampshire judge said, indirectly, that it breaks New Hampshire’s wiretap laws. “It didn’t affect our business plans,” said Marty Schultz, CEO of p2pLog, the fourth company he has founded. “We just said, ‘Here is something else we need to include.’” Such is life for the innovative. Here’s the background: As the name implies for the acronymsavvy, p2pLog records a log of conversations in peer-to-peer (p2p) software, or instant messaging, over computer networks. It doesn’t handle over-the-air IMing, such as on a Blackberry or a text-message cell phone. It fills a hole in the market: e-mail has long been recorded at businesses that want to make sure company secrets aren’t being divulged or employee time being wasted, but IM is becoming a digital-conversation mode of choice, for sales and businesspeople as well as Japanese teen-agers. Yet e-mail software doesn’t touch it. For some occupations, such as stockbrokers, that shortfall is dangerous, since federal regulation requires that office communication be recorded to limit hankypanky. “That’s our niche,” said Schultz, “the need small and mid-size companies have in monitoring and controlling employees’ use of instant messages.” So p2pLog came into being and grew to its current 12 employees. A home version was launched earlier this year, and all was well. Until Feb. 23, when Rockingham County Superior Court Judge Robert Morrill ruled that a Portsmouth city detective broke New Hampshire’s wiretap laws when he cut-and-pasted an AOL chat during a pedophilia investigation, without first getting a warrant. Morrill noted that New Hampshire is a “two-party consent state,” requiring that everybody in a conversation must consent to having it intercepted or recorded. If you call me, I can’t tape-record our talk without your knowledge unless I have a warrant from a judge or OK from the attorney general. Morrill decided that keeping a copy of an IM chat was the legal equivalent of recording, writing “if (the detective) had not taken these acts, the words of the online communication would no longer exist after the program was exited or the computer was shut down.” Then he threw out the chat as evidence, squashing the case. Coping with the unexpected Morrill’s ruling has produced a tizzy in police departments, since getting a warrant before every IM chat is impossible. Expect something to come out of the State House soon to address this. A hair-splitting clarification: Getting a warrant before every IM session isn’t necessarily the result of Morrill’s ruling — only before IM chats involving chat software that doesn’t automatically record conversations, such as AOL’s. ICQ, the original favorite in this genre, keeps a permanent record of conversations by default, although this feature can be turned off. (The distinction, according to Morrill and judges in other states, is that people who use an IM client that records by default have already consented to being recorded, so no warrant is required.) Morrill’s ruling has potential repercussions outside the police station. For example, my daughter is apparently a lawbreaker, because I know she has cut-and-pasted some wicked funny comments about teachers made by other 14-year-old girls on AOL, without getting permission. I think I’ll garnish her allowance as punishment. All in all, the ruling is a perfect example of the fun that can ensue when long-established norms collide with new technology. Most of us think of phone calls as being inherently different from e-mail and IM. The former is spoken, while the latter is written, which gives it a psychological permanence even when it’s the most ephemeral of “meet you for lunch” missives. From the law’s point of view, though, phone calls and AOL chat are the same thing — conversations between two people who can’t necessarily see each other — so they come under a lot of the same laws. Is that right? Is that wrong? Sorting out questions like that is why we have democracy. But where does this leave p2pLog? Coping with the unexpected, as business often has to do. “In the next release, whenever a conversation’s initiated, it will inform both parties that it is being recorded — equivalent to when you call a company and are told ‘This conversation will be recorded for training purposes,’” said Schultz. So far, he’s not planning on putting it in the home version. It would be pretty intrusive in a product aimed at parents keeping an eye on their kids’ IM-ing. But that, of course, could change. Things always do for the innovative. David Brooks writes about science and technology for the Telegraph of Nashua. His column appears monthly.
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