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Analyzing Instant Messaging As Evidence

By Ken Strutin
September 27, 2007
Instant messaging is an increasingly popular medium that is sometimes an important link in the prosecution's case. As with every new communication tool, it brings new challenges for criminal procedure. This multi-layered technology provides the convenience of e-mail coupled with the immediacy of a phone call. At the same time, its informality allows anonymity and raises concerns about privacy, authentication, best evidence and identification.

At heart, instant messages ('IMs') are no more than words on a screen. But it would be a mistake to view them with a one-size-fits-all approach. They are the result of complex communication and computer operations, subject to human error, computer error and manipulation. And they should not be blindly accepted or lumped together with more verifiable message formats, such as e-mail.

Private or Not?

Because IMs can be sent by a variety of devices, the Fourth Amendment analysis begins with the search and seizure of the host technology, followed by the recognition of an expectation of privacy in the content.

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