• Categories

  • Pages

  • Archives

“I Have Him Saying That On Audio!” Yes, But Is That Legal? State Recording Laws

Hands down, the best publicly available guide to electronic recording law is that provided by the Reporters Committee For Freedom Of The Press (RCFP). The guide also includes FCC rules and updates to laws already in existence.

Comprehensive yet easily absorbed and implemented, the RCFP’s Recorders Reporting Guide outlines the tape-recording laws and then options with state-by-state definitions and laws. For example, the tape-recording laws for New York:

New York

Summary of statute(s): An individual who is a party to either an in-person conversation or electronic communication, or who has the consent of one of the parties to the communication, can lawfully record it or disclose its contents. N.Y. Penal Law §§ 250.00, 250.05 (McKinney 2012).

In-person conversations: The “mechanical overhearing of a conversation,” or the “intentional overhearing or recording of a conversation or discussion, without the consent of at least one party thereto, by a person not present” is illegal. N.Y. Penal Law § 250.00. A state appellate court held that individuals who talk in a manner such that a non-participating third party may freely overhear the conversation may have no reasonable expectation of privacy in it. New York v. Kirsh, 575 N.Y.S.2d 306 (N.Y. App. Div. 1991). Thus, a journalist does not need consent to record conversations in public where there is no reasonable expectation of privacy.

Electronic communications: The consent of at least one party to any telephone communication, including a cellular telephone communication, is required to record it. Sharon v. Sharon, 558 N.Y.S.2d 468 (N.Y. Sup. Ct. 1990). And because the provision of the statute dealing with wireless communications applies to “any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature,” consent likewise is required to disclose the contents of text messages sent between wireless devices. N.Y. Penal Law § 250.00.

Hidden cameras: It is a felony to photograph or record “the sexual or other intimate parts” of a person in a place where the person has a reasonable expectation of privacy, and to use a hidden camera, regardless of whether a person has a reasonable expectation of privacy, to “up-skirt” or “down-blouse,” or secretly photograph or record that person under or through his or her clothing. N.Y. Penal Law § 250.45. The law, however, does not criminalize the use of recording devices for other purposes in areas to which the public has access or there is no reasonable expectation of privacy (i.e., filming conversations on public streets or a hotel lobby).

Criminal penalties: Illegally recording an in-person conversation or electronic communication is a felony offense. N.Y. Penal Law § 250.05.

Disclosing recordings: Disclosing the contents of a sealed communication that has been opened or read in violation of the wiretap law without the consent of the communication’s sender or receiver is considered “tampering with private communications,” a misdemeanor. N.Y. Penal Law § 250.25.

Straightforward language for a sometimes gray area of investigative rules.

BNI Operatives: Situationally aware.

As always, stay safe.

 

Electronic Crime Scene Investigations; Evidence Collection. II/II

In Part I of our two-part Electronic Crime Scene Investigations series, we covered recognizing and securing an electronic crime scene.  In this post, we delve into the actual investigation itself.

First and foremost, now that you have identified and isolated all persons with access from the crime scene, please ensure that they provide your investigator with a release similar to the below.  (Please check with your local law enforcement on particular jurisdictional guidelines.)

CONSENT TO SEARCH ELECTRONIC MEDIA AND CLOUD STORAGE
I, __________________, hereby authorize __________________, who has identified himself / herself as an investigator lawfully engaged by _____________________, and any other person(s), including but not limited to a computer forensic examiner, he / she may designate to assist him / her, to remove, take possession of and / or conduct a complete search of the following: computer systems, electronic data storage devices, computer data storage diskettes, DVDs, or any other electronic equipment capable of storing, retrieving, processing and / or accessing data and any and all cloud storage accounts that may contain any company information, files and references.
The aforementioned equipment and storage will be subject to data duplication / imaging and a forensic analysis for any data pertinent to the incident / criminal investigation.
I give this consent to search freely and voluntarily without fear, threat, coercion or promises of any kind and with full knowledge of my constitutional right to refuse to give my consent for the removal and / or search of the aforementioned equipment /data, which I hereby waive. I am also aware that if I wish to exercise this right of refusal at any time during the seizure and or search of the equipment / data, it will be respected.

This consent to search is given by me this ________ day of, __________________
20__________, at ____________ am / pm.

Location items taken from: ____________________________________________
Consenter Signature: ________________________________________________
Witness Signature: _________________________________________________
Witness Signature: _________________________________________________

Evidence Collection
Handling digital evidence correctly is essential to preserving the integrity of the physical device as well as the information or data it contains. Turning off the power to a computer or other electronic device may cause the information or data stored on it to be damaged or lost.
If you are not trained in handling digital evidence —
• Do not attempt to explore the contents of a computer or other electronic device or to
recover information from it.
• Do not alter the state of a computer or other electronic device.
• Do not press any keys or click the mouse.
• If the computer or device is off, leave it off.
• Do not move a computer or other electronic device that is powered on.
• Do not accept offers of help or technical assistance from unauthorized persons.
• DO request technical assistance from personnel with advanced equipment and training in digital evidence collection.  See http://www.ecpi-us.org/Technicalresources.html for a list of available resources.

Assess the Situation

Before caputring digital evidence, make sure you have the legal authority to do so. Improper access to information or data stored on electronic devices may violate provisions of various local, sate and federal laws.

After securing the scene and identifying the computer’s power status, follow the steps listed below for the situation most like your own. (If the final suggestion in each situation is “Proceed to If Computer Is On” or “Proceed to If Computer Is Off.”, those two sections are posted on the bottom on this article.)

Situation 1: Monitor is on. Program, application, work product, picture, e-mail or Internet site is displayed.

1. Photograph screen and record information displayed.
2. Proceed to “If the Computer Is ON”

Situation 2: Monitor is on. Screen saver or picture is visible.
1. Move mouse slightly without depressing buttons or rotating wheel if present.
2. Note any onscreen activity that causes a change in the display.
3. Photograph screen and record information displayed.
4. Proceed to “If the Computer Is ON”

Situation 3: Monitor is on. Display is blank.
1. Move mouse slightly without depressing buttons or rotating wheel if present.
2. Display changes to login screen, work product, or other visible display.
3. Note change in display.
4. Photograph screen and record information displayed.
5. Proceed to “If the Computer Is ON”

Situation 4a: Monitor is off. Display is blank.
1. If monitor’s power switch is in off position, turn monitor on.
2. Display changes to a login screen, work product or other visible display.
3. Note change in the display.
4. Photograph screen and record information displayed.
5. Proceed to “If the Computer Is ON”

Situation 4b: Monitor is off. Display is blank.
1. If monitor’s power switch is in off position, turn monitor on.
2. Display does not change. Screen remains blank.
3. Note that the display does not change.
4. Photograph blank screen.
5. Proceed to “If the Computer Is OFF”.

Situation 5: Monitor is on. Display is blank.
1. Move mouse slightly without depressing any buttons or rotating the wheel if present.
2. If display does not change, confirm that power is supplied to the monitor.
3. If display remains blank, check computer case for active lights and listen for fans spinning or other indications computer is on.
4. If computer case gives no indication that it is powered on, proceed to “If the Computer Is OFF”.

================================

If the Computer Is OFF
For desktop, tower and minicomputers follow these steps:
1. Document, photograph, and sketch all wires, cables, and devices connected to the computer.
2. Uniquely label and photograph the power supply cord and all cables, wires or USB drives attached to the computer and the connection each of these occupies on the computer.
3. Remove and secure the power supply cord from the back of the computer and from the wall outlet, power strip or battery backup device.
4. Disconnect and secure all cables, wires and USB drives from the computer and document the device or equipment connected at the opposite end.
5. Place tape over the floppy disk slot if present. Ensure that the CD or DVD drive trays are retracted into place and tape across the drive tray to prevent it from opening.
6. Place tape over the power switch.
7. Record the make, model, serial numbers and any user-applied markings or identifiers.
8. Record or log computer and all cords, cables, wires, devices and components according to agency procedures.
9. Carefully package all evidence collected to prevent damage or alteration during transportation and storage.

For laptop computers follow these steps:
1. Document, photograph and sketch all wires, cables and devices connected to the laptop.
2. Uniquely label and photograph all wires, cables and devices connected to the laptop and the connection each occupies.
3. Remove and secure the power supply and all batteries from the laptop computer.
4. Disconnect and secure all cables, wires, and USB drives from the laptop and document the equipment or device connected at the opposite end.
5. Place tape over the floppy disk slot if present. Ensure that the CD or DVD drive trays are retracted into place and tape across the drive tray to prevent it from opening.
6. Place tape over the power switch.
7. Record the make, model, serial numbers and any user-applied markings or identifiers.
8. Record or log the laptop computer and all cords, cables, wires, devices and components according to agency procedures.
9. Carefully package all evidence collected to prevent damage or alteration during transportation and storage.

If the Computer Is ON
Removing the power supply is generally the safest option. If evidence of a crime is visible on the computer display, however, request assistance from personnel with experience in volatile data capture and preservation.

Immediate disconnection of power is recommended when —
• Information or activity on screen indicates that information or data is being deleted or overwritten.
• A destructive process appears to be in progress on the computer’s data storage device(s).
• The system is powered on in a typical Microsoft Windows® environment. Pulling the power supply cord from the back of the computer will preserve information about the last user account logged in, login time, most recently used documents, most
recently used commands, and other valuable information.

Immediate disconnection of power is NOT recommended when —
• Information or data of apparent evidentiary value is in plain view onscreen. Seek assistance from personnel with advanced training in digital evidence collection.
• Indications exist that any of the following are active or in use: Chat room(s), text documents, remote data storage, Instant Messaging (IM), child pornography, contraband, financial documents, data encryption and obvious illegal activities.
• The device is a mobile or smart phone. Leave mobile and smart phones in the power state in which they were found.

Improper shutdown of mainframe computers, servers or a group of networked computers may result in the loss of data, loss of evidence and potential civil liability. Secure the scene and request assistance from personnel with advanced training in digital evidence collection of large or complex computer systems.

(We suggest you print Parts I and II of this series into a manual format.)

BNI Operatives: Street smart; info savvy.

As always, stay safe.

%d bloggers like this: