Privacy

Key point. The secret recording of oral or electronic conversations may violate state or federal wiretapping laws.

* A federal court in Pennsylvania ruled that a school did not violate a federal wiretap law when it used a transcript of an AOL "Instant Messenger" conversation between two high school students as the basis for expelling one of the students. An 11th-grade high school student ("Steve") participated in an America Online ("AOL") Instant Messenger conversation with another student ("John"). AOL defines its "instant message" service as "an online conversation between two or more people who have AOL Instant Messenger or America Online software. Instant messages are private and free." At the time of the conversation, both students were in their respective homes using their own personal computers and Internet access. John saved the text of the conversation using the "cut and paste" feature on his computer and brought a transcript of it with him on an out-of-town school trip several weeks later. A chaperone on the trip saw the transcript and allegedly "seized" it and, upon returning home, disclosed its contents to school administrators. The school suspended Steve based on the transcript’s contents. School officials urged Steve’s parents to obtain psychiatric evaluations of him to determine if he "posed a threat to the school community ." Before the results of the evaluations became available, however, the school permanently expelled Steve. He and his parents later sued the school, claiming that its use of the AOL Instant Messenger transcript violated a federal wiretap law specifying that any person who

intentionally discloses, or endeavors to disclose, to any other person the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subsection; [or] intentionally uses, or endeavors to use, the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subsection, shall be subject to [civil liability].

The court noted that for the school to be liable under the federal wiretap statute, a third party must have illegally intercepted the conversation between Steve and John. This requirement was not met. The court observed, "The plaintiffs do not allege any facts that would suggest there was anything at all illegal about [John’s] act of saving the conversation. The complaint alleges that John, a party to the conversation, captured and recorded the text of the conversation by using the cut and past feature on his computer. He then brought the transcript on a school trip, where a chaperone seized it and disclosed its contents to [school] administrators." The court pointed out that the wiretap law specifically allows a person "to intercept a wire, oral, or electronic communication where such person is a party to the communication … unless such communication is intercepted for the purpose of committing any criminal or tortious act."

The court concluded, "John did not violate the federal wiretap law when he recorded the AOL conversation. Thus, because there has been no unlawful interception i.e., because no information was obtained "in violation of" the federal wiretap statute plaintiffs’ claim against [the school] must fail."

Application. The widespread use of AOL Instant Messenger (and related services) makes it likely that some churches will be presented with transcripts of private conversations suggesting that a staff member is guilty of conduct that is grounds for dismissal. What should church leaders do with such evidence? Most importantly, they should not use it without first seeking the counsel of an attorney. This case suggests that the federal wiretap law will not be violated by a church’s use of such a transcript so long as the transcript is delivered to the pastor or a church officer by a party to the communication who obtained it lawfully. S.L. v. Friends Central School, 2000 WL 352367 (E.D. Pa. 2000).

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