[An interesting line ---"Any reasonably intelligent person, savvy enough
to be using the Internet ... would be aware that messages are received
in a recorded format, by their very nature, and can be downloaded or
printed," said the court, --- might be read by (completely different)
courts thinking about copyright & digital rights technologies.]
Court to Decide Whether Cops Can Monitor E-Mail Without Warrant
By Michael RubinkamAssociated Press Writer
Published: Feb 20, 2002
PHILADELPHIA (AP) - The Pennsylvania Supreme Court has agreed to decide
whether police may look at a suspect's e-mail and instant messages
without first obtaining a court order.
The case involves a former Lehigh County police officer, Robert Proetto,
who used the Internet to solicit sex from a 15-year-old girl. Proetto is
appealing his conviction.
It's the first time any state supreme court has agreed to review
government access to private Internet communications, said Proetto's
attorney, Tommaso Lonardo.
"It's a relatively novel question," said David Sobel, general counsel
for the Electronic Privacy Information Center.
After meeting the girl in an Internet chat room, Proetto e-mailed her a
nude photograph of himself. He also asked for a nude videotape of the
girl, according to court documents.
Proetto and the girl chatted often for about a week and Proetto
repeatedly ask her to have sex, documents say.
The girl reported Proetto to the Bristol Borough Police Department in
Bucks County. Proetto was arrested when he made sexually explicit online
comments to a detective posing as another 15-year-old girl.
Proetto was convicted of criminal solicitation and related offenses and
served six months of house arrest. His probation ends this month.
At issue is whether Proetto's e-mail and instant messages to the girl
should have been suppressed at trial. Proetto claims police violated the
state's wiretapping law by looking at the messages without first
obtaining a warrant. Proetto also claims his Fourth Amendment privacy
rights were violated.
Though federal law only requires the consent of one person before a
telephone call or Internet communication can be recorded, Pennsylvania
and 11 other states require the consent of all parties.
"I think most people would feel more comfortable knowing the other
participant in a communication does not have the unilateral ability to
bring the government into that conversation without court approval,"
Sobel said.
Pennsylvania's Superior Court took a different view, ruling that Proetto
had consented to the recording by the very act of sending e-mail and
instant messages.
"Any reasonably intelligent person, savvy enough to be using the
Internet ... would be aware that messages are received in a recorded
format, by their very nature, and can be downloaded or printed," said
the court, likening an e-mail message to a message left on a telephone
answering machine.
The court also said the wiretapping law did not apply because police did
not intercept Proetto's messages as he was sending them, but after the
fact.
The Pennsylvania Supreme Court, which announced last month it would
consider the case, will decide whether the evidence should have been
excluded.
At the time of his conviction, Proetto, who is in his early 30s, was
working as a police officer for the Colonial Regional Police Department
in Lehigh County. He was fired and now sells appliances, Lonardo said.
Mike Godwin, a policy fellow at the Center for Democracy and Technology,
said Proetto's case illustrates the difficulty of applying old laws to a
relatively new technology.
"States have the freedom to raise the floor of protection for
intercepted communications," he said. "It becomes a question of whether
Internet messages count."
http://ap.tbo.com/ap/breaking/MGACY31BXXC.html
