Accusations that Spokane Mayor Jim West abused his office by developing gay relationships online have provoked discussion, in his state and elsewhere, as to just how much privacy one does or does not have in cyberspace.
The West case is being analyzed in light of a Washington state Supreme Court ruling three years ago: In that case, emailers and users of at least one instant messaging program (ICQ) were held not to have the ironclad privacy expectations afforded telephone callers, on grounds that there is an assumption of consent in allowing recipients to read email and instant messages.
"Individuals tend to express themselves in chat rooms and in instant messaging in ways that assume privacy but, as we're learning, that's not the case all the time," First Amendment and adult entertainment attorney Lawrence G. Walters told AVNOnline.com. "This is a typical situation where the law has not caught up with the technology at this point."
West was known as an anti-gay activist during his earlier career as a state lawmaker. The Republican came under fire after an area newspaper, the Spokesman-Review, hired a forensic computer expert as part of a three-year probe into the mayor's activities. The expert posed as a gay high school senior, first at Gay.com's chat room and then on AOL Instant Messenger.
West has been accused by the paper of offering the "high school senior" a city internship and such perks as the use of West's luxury Lexus convertible, among other abuses of his office.
According to another published report, the chief deputy prosecuting attorney of the King County Prosecutor's Office fraud division, Patrick Sainsbury, the amount of privacy to which West was entitled on AIM depended on the privacy warnings AIM gives users.
The same is probably true for instant messages—at least those sent using ICQ, a rival to AOL's Instant Messenger, the court ruled. ICQ specifically warns users that the software allows any party to a conversation to record it, and therefore users risk exposure of their messages to others.
Chris Jay Hoofnagle, who directs the Electronic Privacy Information Center's San Francisco office, told AVNOnline.com that questions to consider include whether instant messaging – "which is more contemporaneous" than email – looks more like a telephone call than an email or a regular letter.
"Part of the issue is whether or not the conversation is contemporaneous," he said. "With email, I send you a message and you respond, but it isn't a contemporaneous response as it is with the telephone. [Instant messaging] is much more contemporaneous than email. It's less like email that's easily forwardable and more difficult to deal with consent issues."
Several U.S. states including Maryland, California, and Pennsylvania have two-party consent laws that govern recording telephone conversations.
"There's going to need to be rethinking of the statutes and laws pertaining to electronic investigation, and in particular the consent provisions," Walters said. "And we have most states where the law enforcement can eavesdrop or listen in on a telephone call if one party consents or if they get a court order. Many people don't realize that when they're typing online to someone they intend to be a private message."
He said cases like the West case, even those involving allegedly corrupt or misbehaving public officials, would cause "more self censorship and caution" among instant messaging users, "unless the courts step in and impose privacy expectations on this type of electronic communication."
West was reported at first to have told a Seattle television news station he had no intention of stepping down, despite the AIM incident and other allegations of sexual misconduct against him. But late May 9, the Associated Press reported the mayor would take a leave of absence "for a few weeks" to prepare his defense against the Spokesman-Review's accusations.
