Yahoo! Chat Logs Admitted Over Defendant’s Objections Based on Eavesdropping Statute — People v. Nakai

[Post by Venkat]

State v. Singh Nakai, 2010 Cal. App. LEXIS 446 (Cal. App.) (Div. 2) (April 2, 2010)

Division two of the California Court of Appeals recently rejected a defendant’s argument that California’s eavesdropping statute precluded the admission of Yahoo! chat logs. (Warning: the case contains strong language.)

The case arose out of chats between defendant Singh Nakai and “Coleen,” who was actually 35 years old but posing (and posting) as a 12 or 13 year old in internet chat rooms.* Defendant was convicted of “attempting to send harmful matter to a minor with the intent to seduce the minor,” and acquitted of trying to commit a lewd act with a minor. Defendant argued (among other things) that the Yahoo! chat logs were improperly admitted over his objection.

Section 632 of the California Criminal Code prohibits the recordation of a “confidential communication . . . without the consent of all parties” to that communication, and provides that any information obtained in violation of section 632 is not admissible in any proceeding. Section 632 defines a “confidential communication” as “any communication carried on in circumstances as may be reasonably indicate that any party to the communication desires it to be confined to the parties thereto . . . . but excludes a communication made in . . . . any other circumstance where the parties to the communication may reasonably expect that the communication may be overheard or recorded.” [emphasis added]

The prosecutor argued that “it was not objectively reasonable to believe that the Yahoo! chat dialogues were not being recorded, due to the dialogues being sent and received in a recorded format, i.e., writing.” The prosecutor also argued that Yahoo!’s chat privacy policy undermined any reasonable expectation of confidentiality because the policy provided that Yahoo! would share information as necessary to “prevent . . . illegal activities.”

The policy stated that Yahoo! could disclose information:

if [Yahoo!] believe[s] it is necessary to share information in order to investigate, prevent, or take action regarding illegal activities, suspected fraud situations involving potential threats to the physical safety of any person, violations of Yahoo!’s terms of use or otherwise required by law.

The policy also stated that participants in Yahoo! chat communications should not necessarily expected the chats to remain confidential.

The appeals court held that the chats could not reasonably be seen as “confidential”: (1) the privacy policy indicated that chat logs may be shared; (2) the policy warned users that chat logs can be archived and printed by the receiving party; (3) the defendant was communicating with someone he didn’t know (and could not reasonably trust); and (4) the defendant himself expressed concern as to whether the receiving party’s parent would discover the communications (which reflected awareness that the communications could be viewed or printed).

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Rather than delving into the Yahoo! chat privacy policy and how this affected the expectation of confidentiality, I’m surprised the court didn’t just say that chats don’t fall under the statute because chat logs are “recorded” as a matter of course by the sender and recipient, and leave it at that. No one ever asks consent to record and retain chat logs. For some reason, people always seem to equate them with telephone calls as far as whether chats leave behind a recording and whether permission is required. With respect to how this ruling may apply to other scenarios, surreptitiously obtained chat communications are often used in civil cases, such as divorce proceedings. While other laws may come into play, it looks like the California eavesdropping statute will not.

Either way, the case is a good reminder that chat logs (like texts and emails) may be admissible.

[* As I read the case I wondered about the propriety of these types of stings, and whether the legality of internet stings, including those conducted by private citizens or “investigators” was well settled. Given that the defendant didn’t even raise the issue in this case, it didn’t appear to be a viable argument (in California at least). As a civil practitioner, this issue is pretty far outside my realm of experience. But Cyb3rcrim3 has a post that talks about how attacks on private internet stings have played out.]

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