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Court to Decide Whether Cops Can Monitor E-Mail Without Warrant

February 19, 2002
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Court to Decide Whether Cops Can Monitor E-Mail Without Warrant

by Michael Rubinkam, Associated Press

PHILADELPHIA (AP) - The Pennsylvania Supreme Court has agreed to decide whether police may look at a suspect's e-mail and instant messages without first obtaining a court order.

The case involves a former Lehigh County police officer, Robert Proetto, who used the Internet to solicit sex from a 15-year-old girl. Proetto is appealing his conviction.

It's the first time any state supreme court has agreed to review government access to private Internet communications, said Proetto's attorney, Tommaso Lonardo.

"It's a relatively novel question," said David Sobel, general counsel for the Electronic Privacy Information Center.

After meeting the girl in an Internet chat room, Proetto e-mailed her a nude photograph of himself. He also asked for a nude videotape of the girl, according to court documents.

Proetto and the girl chatted often for about a week and Proetto repeatedly ask her to have sex, documents say.

The girl reported Proetto to the Bristol Borough Police Department in Bucks County. Proetto was arrested when he made sexually explicit online comments to a detective posing as another 15-year-old girl.

Proetto was convicted of criminal solicitation and related offenses and served six months of house arrest. His probation ends this month.

At issue is whether Proetto's e-mail and instant messages to the girl should have been suppressed at trial. Proetto claims police violated the state's wiretapping law by looking at the messages without first obtaining a warrant. Proetto also claims his Fourth Amendment privacy rights were violated.

Though federal law only requires the consent of one person before a telephone call or Internet communication can be recorded, Pennsylvania and 11 other states require the consent of all parties.

"I think most people would feel more comfortable knowing the other participant in a communication does not have the unilateral ability to bring the government into that conversation without court approval," Sobel said.

The state Superior Court took a different view, ruling that Proetto had consented to the recording by the very act of sending e-mail and instant messages.

"Any reasonably intelligent person, savvy enough to be using the Internet ... would be aware that messages are received in a recorded format, by their very nature, and can be downloaded or printed," said the court, likening an e-mail message to a message left on a telephone answering machine.

The court also said the wiretapping law did not apply because police did not intercept Proetto's messages as he was sending them, but after the fact.

The high court, which announced last month it would consider the case, will decide whether the evidence should have been excluded.

At the time of his conviction, Proetto, who is in his early 30s, was working as a police officer for the Colonial Regional Police Department in Lehigh County. He was fired and now sells appliances, Lonardo said.

Mike Godwin, a policy fellow at the Center for Democracy and Technology, said Proetto's case illustrates the difficulty of applying old laws to a relatively new technology.

"States have the freedom to raise the floor of protection for intercepted communications," he said. "It becomes a question of whether Internet messages count."

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