Weiner Can Seek a Remedy in the Wiretap Laws

[SoDesuKa]

Kentuck raises an interesting point about Weiner's reasonable expectation of privacy while making what is essentially a Voice Over IP telephone call. Do the wiretap laws protect digital content that converts to pictures instead of conversation? I'd say they do.

Under existing wiretap laws a private citizen may not make a recording of an intercepted phone call; in fact, a private citizen may not even listen in. But widen the concept of listening in to include receipt of a message manifestly intended for someone else.

Mutatis mutandis, the legal principle remains the same. You may not listen in on another person's conversation and you may not view pictures not intended for you.

Do guys have the right to send cock pix of themselves to consenting adults? Yes they do

Do other people have the right to access recorded images from other people's phone calls? No they don't.

[GodlessBiker]

1. I like it, although I would hesitate to call this a "remedy." This won't remediate anything.

[Boojatta]

22. "Remedy" is legal terminology.

On May 22nd, 2011, I posted a thread to ask about the legal issue of privacy in telephone calls for traditional copper wire versus VoIP:
With data routed via the internet, are land line phone calls private?

[DrDan]

2. wasn't there (at least) one recipient who did not consent to receiving his pic? He just sent it?

[kentuck]

3. I think this is an avenue that needs to be explored.

There are a lot of questions. The Internet nor Twitter doesn't supersede all the privacy laws on the books. They are easy to leapfrog but that does not mean they are legal - it only means they are easy. If the photo in question was intercepted or was purchased with intent to destroy the individual that sent it, I would think that would not be legal??

[robcon]

4. Why do we need to explore it. It's not the sex, it's Weiner's lies and false accusations.

Weiner is history, I believe.

[kentuck]

5. It's neither.

It's possibly a violation of privacy. It doesn't matter if he sent pornography or if he lied about it. He has the same protections for privacy as do you and I.

[SoDesuKa]

12. The Right to a Good Name

People have the right to a good name whether or not other people agree that a person's good reputation is fully earned. Ruining someone's reputation is indeed injuring them, and it doesn't depend on whether or not you really have the goods on them.

If you illegally break into somebody's house looking for information that will ruin them, you may not use that information under any circumstances. At issue here is whether Weiner's privacy rights on a phone call rise to the level of those more immediately recognized.

Nobody has the right to enter your house whether you have the door open or not. Breitbart's defense here seems to be that since it's relatively easy to acquire damaging information from a VOIP phone call, that puts the entire burden of protecting personal information on the person making the phone call. I disagree. Theft is theft whether it's easily accomplished or not. And using damaging information from an essentially wiretapped phone call is still depriving the victim of rights he has not waived.

[tblue37]

46. Despite our argument on another of your threads--in which you

didn't seem to realize (or care) that I was actually supporting your main point against those who were attacking you(!)--I have to agree with you on this point, too.

I hope you don't mind as much as you did last time I tried to agree with you!

No, wait. I just realized something. As I explain in my post 47, since Weiner's error in hitting the wrong button sent the picture to all of his followers instead of just her, I am now thinking that he has no remedy, since patriotusa76 didn't sneak in and steal it. Patriotusa76 was actually one of Weiner's Twitter followers, so he would have received the picture, too, without having to do anything related to wiretapping to get it. He was following Weiner specifically so he could watch his tweets to catch anything compromising that might, um, pop up.

[ljm2002]

6. I thought Weiner sent the pic to some woman...

...who then gave it to Breitbart, who then put it on his own cell phone and showed it off.

If that is the case then I don't think the wiretap laws apply, as it would not have been intercepted in transit and misused by the non-intended recipient; rather, it was shared with Breitbart by the intended recipient. Once you send your picture to someone -- seems to me they are free to share it with whomever they wish, without running afoul of the law.

[kentuck]

8. I think she may have sold it?

Instead of sharing it? The intent of Breitbart was criminal.

[SoDesuKa]

17. Broad Daylight on a Busy Street

Twitter has been characterized as like "broad daylight on a busy street." But you can only send 140 characters at a time. That's quite a limitation!

How is it possible to send out pictures with any kind of definition at all with a 140-character limitation? I'd expect them to look like ASCII art.



ASCII Art

[Cronus Protagonist]

11. As I read the story, he said himself that he tweeted it to his followers

And immediately removed it. It was done so fast that only a few saved it... of course, the vultures.

Perhaps there was something I missed, but I don't recall him saying he sent it to one particular person. He did say precisely 6 women were involved over a period of time.

[SoDesuKa]

19. 140 Characters?

What kind of photograph takes up only 140 characters? Even ASCII art takes up more than that.

[Cronus Protagonist]

34. I'm guessing you don't tweet

Or you would know that tweeters post pics all the time using the same technique that Weiner did.

[tblue37]

47. Except the original flap was caused by patriotusa76, who

grabbed a screen capture from Weiner's attempt to send the pic to the college girl (Genette Something, I think) who had not requested it or engaged in any sex chat with him.

However, since his error in hitting the wrong button sent the picture to all his followers instead of just her, I am now thinking that he has no remedy, since patriotusa76 didn't sneak in and steal it. Patriotusa76 was actually one of Weiner's Twitter followers, so he would have received the picture, too, without having to do anything related to wiretapping to get it.

[TheWraith]

7. That doesn't even BEGIN to accurately describe the situation.

For one thing, this is not an "intercepted phone call." The message was never, at any time, private. He put it out on Twitter. The fact that he INTENDED it to be private doesn't matter in the slightest, since it was his own ineptitude that resulted in that.

Also, describing the situation as "consenting adults" when the would-be recipient had not in any way solicited such a photo is inaccurate. "Harassment" is the relevant term.

Last but not least, Weiner trying to sue someone--even if there were someone to sue--doesn't change the facts of his misbehavior.

[SoDesuKa]

9. "IP" and "The Internet" are the Same Thing

The "IP" in VOIP is "internet protocol." Nearly every phone call you make these days is routed through the Internet at some point. So the fact that Weiner "put something on the Internet" does not attenuate the expectation of privacy. Everything is on the Internet these days.

Your point about whether or not the individual receiving the cock pix actually solicited them may not be the controlling issue, if you are implying that her non-consent gives Andrew Breitbart the right to use these pictures to ruin Weiner's career.

Whether or not Weiner did "wrong" is a moral judgement, not a legal one. Frankly, I don't sending cock pix is immoral in itself, but it sounds like you do. This is not a theocracy.

[TheWraith]

10. I know the facts of the technology. Apparently better than you do.

"The "IP" in VOIP is "internet protocol." Nearly every phone call you make these days is routed through the Internet at some point. So the fact that Weiner "put something on the Internet" does not attenuate the expectation of privacy. Everything is on the Internet these days."

No, going over the internet does not waive the expectation of privacy. PUBLICLY POSTING IT on the internet, via Twitter, DOES. I have no expectation of privacy if I walk naked down main street, even if I don't INTEND for anyone to see me.

There is zero applicability to wiretap laws here.

[SoDesuKa]

14. You're Right

You're right. I don't know Twitter. And now I'm more mystified than ever.

I don't know how you can send pictures on a messaging system that's limited to 140 characters. So I don't know what Weiner did.

When I'm wrong, I'll admit it. I thought he was using some kind of Voice Over IP system that allows personal conversations. Twitter can't do that, so I don't know what Weiner is accused of doing.

There were pictures, and there were transcripts . . . ??? Sounds far beyond the capabilities of what Twitter is described to be.

[boppers]

24. Twitter can send URL's (website addresses).

He was sending out those web addresses over twitter. The pictures were at the addresses.

The pictures were available to all people who had access to the web.

No privacy expected in that.

As far as the transcripts, those come from private tweets, and SMS, which would have a higher expectation of privacy.

[SoDesuKa]

27. Now You're Reaching

As I understand it, the pictures were taken by the device that Weiner was holding in his hand at the time of the conversations. That seems to rule out the extra step of filing them away on some website.

The sequencing is very important here. Morely including pictures in an otherwise protected VOIP conversation doesn't make those pictures public domain, any more than a transcript of a wiretapped conversation would be.

[boppers]

31. The Undie-shot tweet pointed to an image on yfrog.

The tweet, and pictures he admitted to deleting, were hosted on his yfrog account. They have an app that automates posting an image to the account, *and* sending out a tweet about it.

The naked crotch shot, chest shot, etc. might be different.

[TheWraith]

38. You really shouldn't start theorizing if you've never seen a modern smartphone.

Again, forget VOIP. VOIP has absolutely nothing to do with it, period. Weiner wasn't on VOIP.

A modern cell phone can and will, with a couple button presses, upload a photo you just took with it's camera to a photo hosting site, and at the same time provide you with a short URL that you can send via Twitter. All of this can happen within seconds. I know, because I've done it.

Again, this was NOT a private conversation that was being "tapped." This was somebody who accidentally posted a photo on a publicly accessible and very visible part of the internet. Like DU. If someone posts something on DU, that's about as much a VOIP call as what Weiner did.

[SoDesuKa]

45. Inessetial Differences

Yes, there are big differences between Twitter and VOIP, but the point was to look at what they have in common. And there's that term mutatis mutandis which didn't slow you down at all, you plunged right ahead and ignored it.

Perhaps the confidentiality of electronic communication shouldn't have to depend on whether the user is up on all the latest tricks 'n traps. Telephone technology existed for many years before any of this computer communication got underway; perhaps we ought to look backward for a way to guarantee that users don't throw their careers on the rocks because somebody on their staff neglected to brief them. That's what happened here. Weiner can hardly be expected to keep up with the ins and outs of rapidly changing developments which include the unsatisfactory workaround yFrog.

You were asked to speculate on a social problem, and it involved a few leaps into the world not as it is but as it might be. Mutatis mutandis, that's what I said. Instead you went on some irrelevant tear about differences, not similarities. And your commnets suggest that there's no way to safeguard users' interests except to counsel them not to use available software until the security issues have been worked out. That may take a long time, and we may lose a few Congressmen waiting for it to happen.

[Abq_Sarah]

23. Once he deliberately sent the photo

He lost the right to cry foul. He didn't keep it private, he sent it to people he'd never actually met.

Here's a clue: If you don't want your cock shot blasted across the internet, don't send it to people you don't really know.

[SoDesuKa]

25. The Medium Makes the Difference

Merely saying that he sent a picture over "the Internet" doesn't mean he loses the expectation of privacy. You can't make a phone call these days without at least some part of it going over the Internet, but you still are protected by wiretap laws.

Folks are saying that he can't have an expectation of privacy on Twitter, but we don't know the medium he used. If it was some kind of Voice Over IP, the wiretap laws may be relevant.

[TheWraith]

39. VOIP and Twitter have NOTHING to do with each other. Like apples and lugwrenches.

Their only connection is that they both use the internet, kind of like how you and a Kodiak bear both breath oxygen. Otherwise, they have nothing in common.

[sabrina 1]

41. What utter nonsense. The woman may not have been expecting it

but she was not upset by it and even tried to help him cover it up. So stop with the harassment nonsense. Who needs Breitbart when we have democrats willing to destroy their own?

Second, you CAN use twitter to send private messages and people do it all the time. He intended to do that but accidentally hit the wrong button, which people also do all the time. He deleted it immediately, demonstration that he did not want to go out 'all over twitter'. But one of Breitbart's goons, who was apparently glued to Weiner's twitter acct. (how sick is that?) saw it in the few seconds it was visible.

Iow, she was consenting, did not object, helped him try to cover it up, was harassed herself by Breitbart's goons. His 'behavior' was no one's business so whether he has a right to sue or not, I do not know, but I sure hope he does.


Astounding that people here would prefer to see a good democrat destroyed, rather than put an end to the vile, vicious campaign against Democrats conducted by Breitbart and his funders whose intentions are to destroy 'the evil of liberalism' in the country 'forever'. Just astounding. Breitbart has destroyed many lives, two of whom are currently suing him. The man is a sick individual hired BECAUSE he is so insane as the attack dog against democrats for funders he refuses to name.

Ask Juan Carlos Vera eg, about this vile little man. Or any of the others whose lives he deemed so worthless simply because they chose to be democrats, that he felt righteous in destroying them.

I cannot believe the support this contemptible human being gets on this board.

[TheWraith]

42. By her own account, she wasn't upset because she thought it was a fake.

Ask her now, and I dare say you'd get a different response.

And please do can the bullshit strawman arguments. Attacking people who acknowledge that Weiner was in the wrong as "Breitbart supporters," "goons," and all the other names are simply an effort to distract from the facts.

[sabrina 1]

43. She has spoken since he confessed and has admitted that she

helped him try to cover it up. She said nothing about being harassed only that she was surprised. I guess she lied too when she said she never received it. But again, that is not our business. They are both adults, and I don't care what adults do in their private lives.

[MikeW]

13. not if he used a government blackberry which STILL remains unclear

Your informed when you get one ... EVERYTHING is kept as an official record.

[SoDesuKa]

15. Government Blackberry

If he had these conversations on a government Blackberry, I'm assuming there's no 140 character limitation and that aside from the storage issue, people can have what they understand is a private conversation.

But if he was using Twitter, how was he able to get around the 140 character limitation and send pictures?

[MikeW]

20. doesnt matter and you can get twitter apps for the blackberry

It doesnt matter WHAT app he used on the phone (if he used a gov blackberry)

THERE IS NO REPEAT NO PRIVACY assumption on government equipment NONE NADA.

The only thing that isnt kept is phone calls and that depends on how high up on the food chain you are in an agency

and what kind of position you hold.

[DevonRex]

16. He posted it himself to twitter. End of story. Nt

[SoDesuKa]

18. 140-Character Limitation

How is it possible to send out detailed pictures on a software that's limited to 140 characters at a time? I honestly don't know what the answer is.

[boppers]

26. You've asked this a few times, I'll answer it twice.

He put the pictures on a website. He sent the website information out via twitter/SMS/etc.
Here's a golf course shot from a service he was using.
http://yfrog.com/h0i7qbej

...That's how you send a picture in under 140 characters.

[SoDesuKa]

28. When Were the Pictures Taken?

Were the pictures taken before the conversations such that Weiner only referenced their locations? That doesn't necessarily make them available for somebody like Breitbart to come along copy them and use them to ruin Weiner.

The sequencing of the pictures seems to suggest they were taken by the device Weiner was using during the phone conversation, and would make them effectively part of the conversation itself. It's not a small difference, especially since Weiner clearly had no intention of allowing unlimited access to these very private photographs. The fact that these pictures were stored puts them in the same category as recorded conversations, which are not by any means in the public domain simply by being stored on a website whose location is intended to be private.

[boppers]

35. I haven't looked to see which pictures had EXIF timestamp data.

The pictures hosted on a public website are one thing. Public domain is a matter of copyright, indeed, Weiner does seem to have the right to exercise *copyright* over them, but that's not illegal wiretapping, that's re-publishing without authorization.

Pictures that were sent over a private conversation channel, again, Weiner holds copyright, but I doubt he's asking for royalties. Keep in mind, we're talking about multiple instances, multiple pictures, multiple forms of communication, over two years, according to Weiner... you refer to "the conversation" a couple of times, so you may not be aware that this was multiple conversations, with no less than 6 people, over multiple forms of media, resulting in multiple types of records.

Finally, if you put images on a website, that has no privacy controls, yes, they are not in the public domain, but that doesn't mean that people are not allowed to see them, or make derivative works.

[former9thward]

21. No one posting on twitter, facebook, etc. has any expectation of privacy.

What nonsense.

[SoDesuKa]

30. Not Necessarily True

If I let slip the private location of sensitive files, it doesn't mean I'm granting permission for anyone and everyone to go tracking over there. Just because people can invade my privacy doesn't mean they have the right to.

Some are saying that he used Twitter, not ordinary Voice Over IP, but that runs up against the 140-character limitation. You're arguing that his mistake in divulging the location of a secret file amounts to an open invitation with full knowledge and consent. I can't agree with that. It's a simple mistake, not a waiver of important rights.

[boppers]

36. If you can "let slip" that something is in public view, it's not private.

I believe we've covered the twitter/SMS/voice thing (he used them all), but if you have something you want to keep private, you *don't* put it on the internet without some form of password or encryption.

[ChrisBorg]

29. Nothing was intercepted. The photo was given to AB by the person who possessed it.

This was not a copyright or trademark issue. If you send me a photo, I can show it or send it to anyone I wish.

You don't own that which you willingly gave away.

[SoDesuKa]

32. Privacy Should Cover Images as Well as Audio

I don't know the state of wiretap law these days, but years ago you couldn't audio tape a phone conversation and then sell the tape. If you're allowed to do that today, I'd support a law prohibiting it.

I'd also extend that protection to other digital information as well. Weiner certainly didn't give informed consent to the use of these images for profit; as far as he knew they disappeared into the ether when he hung up.

[ChrisBorg]

37. What part of him willingly giving the pictures to others don't you understand?

[TheWraith]

40. There was no hanging up. There was no phone call.

This is the part you don't seem to get. We're not talking about a phone call. Yes, you can access Twitter via a cell phone, but via text messages. And there is no phone conversation. None of what came out about Weiner involves phone calls of any kind.

[SoDesuKa]

44. Electronic Communication

I think you missed the term "mutatis mutandis" in the original post. It means making appropriate adjustments for obvious differences, in this case between forms of hand-held communication devices. It's an economist's term more than a legal term, and when I thought of using it I suspected some readers might have difficulty with it. I went ahead and used it anyhow.

There ought to be a way to safeguard the confidentiality of an entire communication that doesn't depend on user sophistication. It might come from an extension of the ordinary expectation of privacy on the telephone - that was the point I was making.

When I asked about the limitations of Twitter software you might have mentioned the yFrog workaround. This workaround is simply an adaptation, a temporary fix. Because it puts the user's confidentiality at risk, people in sensitive occupations shouldn't use it at all. It seems obvious that Weiner wasn't told any of this. His staff just let it happen.

Weiner might get a court to embrace the admittedly questionable theory that an unsophisticated user's mistake doesn't entitle others to assume something is in the public domain. However, the discussion of legalities seemed only to make you more strident about the differences between VOIP and Twitter, not their admittedly questionable commonalities. Perhaps the unfamiliar term "mutatis mutandis" threw you.

[tblue37]

49. Maybe this is a point that AW could use. Although patriotusa76 did get the photo in a legal

way, though obviously he was NOT the intended recipient, his copying and publicizing of the photo really is pretty much the same thing as recording a phone conversation without the other party's knowledge or permission and then publicizing it (the way Linda Tripp did to Monica Lewinski).

In some states that is illegal, so if it was done within the jurisdiction of a state that does penalize such sneaky recording of phone conversations by one of the parties, then patriotusa76 might be liable (as Tripp was, I believe) to some sort of legal penalty.

Obviously that won't help Weiner, unless maybe he can sue for monetary civil damages, but even then it won't help his reputation or career. Nevertheless, it might make creeps like patriotusa76 hesitate before pulling such a stunt.

OTOH, these creeps are obviously well financed and protected, so even when they are taken to court, they don't actually suffer in any significant way, and in many ways they end up benefiting, because their wealthy backers pay well for such actions.

[tblue37]

48. The gray undies photo was not given to AB by the girl Weiner sent it to, but by

patriotusa76, who was not the intended rcipient at all. However, since patriotusa76 was following Weiner on Twitter, Weiner's error in hitting the wrong button and thus sending the picture to ALL of his Twitter followers meant that patriotusa76, who was obsessively watching Weiner's tweets in hopes of catchign something like that, immediately grabbed a screen shot and shared it with AB.

IOW, although the other compromising photos (including the naked ones) were given to AB (actually, sold, I am guessing) by Ms. Broussard, she is not the one the gray undies shot was sent to.

Unfortunately for Weiner, patriotusa76 was sent the original gray undies photo by Weiner, as were all of AW's other followers.

Sure, AW deleted the picture as soon as he realized his mistake, but by then patriotusa76 had already grabbed the screen shot and used it in a way that is probably perfectly legal, though unquestionably smarmy and disgusting.

[SoDesuKa]

50. Intended Recipient

I see disclaimers all the time on e-mail sent from corporations, "If you are not the intended recipient, ... Section 247 of United States Code ... put this down now, etc."

It would indeed take a fanciful interpretation of wiretap laws to make it illegal for patriotusa to copy and distribute pictures of which he wasn't the intended recipient - even if he was on the distribution list that the user inadvertently selected. Something similar to the rule at football games that if the ball ends up in the stands it has to be thrown back on the field. (There's no receiver quite as ineligible as somebody sitting in the stands.)

In other words, oops should be a valid argument against copying and distributing material that you received by mistake. Mistakes in transmission can reasonably include users hitting the wrong button, why not?

I am going to get at least three responses telling me that an ineligible receiver is not somebody in the stands and that I obviously know nothing about football . . .

[tblue37]

51. Did you mean "legal" here?

"It would indeed take a fanciful interpretation of wiretap laws to make it illegal for patriotusa to copy and distribute pictures of which he wasn't the intended recipient - even if he was on the distribution list that the user inadvertently selected.

[SoDesuKa]

52. Third Rail

Y'know, there are a lot of political third rails out there these days, just waiting for some unsuspecting sap to step on them.

No, I don't want David Vitter to resign because he visited a prostitute who dressed him in a diaper. I don't want to know about it, it's none of my business.

We're either going to have to do something to preserve privacy or be governed by the kinds of people who aren't even tempted to jerk off to feelthy pictures. It's an important issue. So even if it's a stretch to use the wiretap laws as the basis for an enhancement to existing privacy protections, we've got to come up with something.

The issue's not going away just because we throw a new lecher into the fire every year or so. The way the Patriot Act is collecting information it's only a matter of time before the government - or even worse, private individuals, have got dirt on nearly all of our potential leaders.

Wanna be governed by guys who don't jerk off?

[crazyjoe]

33. He's not under arrest, he's just creepy and a major distraction.