Qworst DSL - Liars!

[Eric]

"Communications law,"  huh?  you must be joking.  This is a matter of
criminal law.  Communications lawyers, if there is such a thing, would
specialize in the regualtion of the airwaves--i.e., FCC stuff.

Look, everyone agrees it is not a violation of ARIZONA law to tape a
conversation with only ONE person's consent.  The issue here is MONTANA law,
and ITS requirements.  The only issue here is how to get around the MT
requirement that ALL parties to a conversation consent.  Several suggestions
have been made.

Here is the statute for MT.  Read it for yourselves, and tell us all what is
legal.  The only answer is to tell the person straight up that you are
taping it.  You can't be coy.  The point of the statute is to have ALL
parties understand they are being taped; not to have them guess or infer.

Notice that 48-8-219 (c)i does not give an exception for any thing suggested
today; no defense depends on who called whom, and no defense depends on
whether one person is out of state.


45-8-213 Privacy in communications


(1) Except as provided in 696104, a person commits the offense of violating
privacy in communications if the person knowingly or purposely:
(a) with the purpose to terrify, intimidate, threaten, harass, annoy, or
offend, communicates with a person by telephone or electronic mail and uses
obscene, lewd, or profane language, suggests a lewd or lascivious act, or
threatens to inflict injury or physical harm to the person or property of
the person. The use of obscene, lewd, or profane language or the making of a
threat or lewd or lascivious suggestions is prima facie evidence of an
intent to terrify, intimidate, threaten, harass, annoy, or offend.
(b) uses a telephone or electronic mail to attempt to extort money or any
other thing of value from a person or to disturb by repeated telephone calls
or electronic mailings the peace, quiet, or right of privacy of a person at
the place where the telephone call or calls or electronic mailings are
received;
(c) records or causes to be recorded a conversation by use of a hidden
electronic or mechanical device that reproduces a human conversation without
the knowledge of all parties to the conversation. This subsection (1)(c)
does not apply to:
(i) elected or appointed public officials or employees when the
transcription or recording is done in the performance of official duty,;
(ii) to persons speaking at public meetings,; or to
(iii) persons given warning of the transcription or recording.
(d) by means of any machine, instrument, or contrivance or in any other
manner:
(i) reads or attempts to read a message or learn the contents of a message
while it is being sent over a telegraph line or by electronic mail;
(ii) learns or attempts to learn the contents of a message while it is in a
telegraph office or is being received at or sent from a telegraph office; or
(iii) uses, attempts to use, or communicates to others any information
obtained as provided in this subsection (1)(d);
(e) discloses the contents of a telegraphic message, electronic mail, or any
part of a telegraphic message or electronic mail addressed to another person
without the permission of the person, unless directed to do so by the lawful
order of a court; or
(f) opens or reads or causes to be read any sealed letter or electronic mail
not addressed to the person opening the letter or reading the electronic
mail without being authorized to do so by either the writer of the letter,
the sender of the electronic mail, or the person to whom it the letter or
electronic mail is addressed or, without the like authority, publishes any
of the contents of the letter or electronic mail knowing the letter or
electronic mail to have been unlawfully opened.
(2) Subsection (1) does not apply to an employer or a representative of an
employer who opens or reads, causes to be opened or read, or further
publishes an electronic mail or other message that either originates at or
is received by a computer or computer system that is owned, leased, or
operated by or for the employer.
(2)(3) Except as provided in 696104, a person commits the offense of
violating privacy in communications if the person purposely intercepts a
telephonic voice or data communication. This subsection does not apply to
elected or appointed public officials or employees when the interception is
done in the performance of official duty or to persons given warning of the
interception.
(3)(4) (a) A person convicted of the offense of violating privacy in
communications shall be fined not to exceed $500 or imprisoned in the county
jail for a term not to exceed 6 months, or both.
(b) On a second conviction of subsection (1)(a) or (1)(b), a person shall be
imprisoned in the county jail for a term not to exceed 1 year or be fined an
amount not to exceed $1,000, or both.
(c) On a third or subsequent conviction of subsection (1)(a) or (1)(b), a
person shall be imprisoned in the state prison for a term not to exceed 5
years or be fined an amount not to exceed $10,000, or both."
Section 9. Effective date. [This act] is effective July 1, 2001.

Approved March 19, 2001>

AND HERE IS 69-6-104



69-6-104 Search Term End . Control of telephone communications to and from a
person holding hostages -- nonliability of telephone company officials


A supervisory law enforcement official who has jurisdiction in a
geographical area where hostages are being held and who has probable cause
to believe that the holder of the hostages is committing a crime may order a
previously designated telephone security employee or other telephone company
official to arrange to cut, reroute, or divert telephone lines in order to
prevent the holder of the hostages from communicating with any person other
than a law enforcement officer or an individual authorized by a law
enforcement officer. The serving telephone company within the geographical
area of a law enforcement agency shall designate a telephone company
security employee or other telephone company official and an alternate to
provide all required assistance to law enforcement officials to carry out
the purposes of this section. A telephone security employee or other
telephone company official acting in good faith under an order given
pursuant to this section does not commit the offense of violating privacy in
communications and is not liable in any civil action brought as a result of
such good faith actions


 -----Original Message-----




> From: plug-discuss-admin@lists.PLUG.phoenix.az.us
> [mailto:plug-discuss-admin@lists.PLUG.phoenix.az.us]On Behalf Of
> Technomage
> Sent: Tuesday, August 28, 2001 4:55 PM
> To: plug-discuss@lists.PLUG.phoenix.az.us
> Subject: Re: Qworst DSL - Liars!
>
>
> ok,
> I've done a little digging (mostly for my own edification), but here
> goes:
>
> in talking with an attorney that has a specialization in
> communications law, I asked if it were legal in arizona
> (assuming this is where the call originates), it is legal for
> one of the parties involved in the call to record the call.
> you are NOT required to let the other party on the line know
> that you are recording (however, courtesy says you should).
>
> I tend to do this as a matter of course because I have no other
> real way of taking fast notes. also, when you call qworst,
> one of the thinsg they do tell you is "you call may be recorded
> or monitored". Since they are headquartered in Denver, the state of
> Colorado's laws would apply (and there, you are required to
> notify the other party on the line that such a recording may
> be taking place).
>
> one last thing, the laws (and courts) will often favor the customer
> in most regards such that the customer has legal protects under his/her
> state laws and they take precidence.
>
> this was hw it was explained to me. since this was a legal opinion,
> such may change depending on who you talk to.
>
> Technomage Hawke
>
> Eric wrote:
> >
> > Ok I guess I 'm back in.
> >
> > I'm not an expert either.  But I don't need to be.  This stuff
> is not estate
> > planning or securities regulation.  Most of this is pretty basic.
> >
> > So if I call qworst and inquire about a DSL package, my call
> may be sent to
> > MT.  I start taping, and qworst starts lying.  I then rely on
> qworst-lies
> > (because I believed them initially) to my detriment.  I receive
> a bill with
> > a charge that was not explained to me by the qworst liar in MT.
>  What now?
> >
> > Sue qworst (I really like saying that) in Arizona small claims
> court.  That
> > court would have personal jurisdiction over me and qworst
> because of actual
> > presence in the state, as well as subject matter jurisdiction
> over the case
> > because qworst's behavior is tortious, and is for an amount under $5,000
> > let's say.
> >
> > Trial day comes and I ambush qworst with an ill-gotten
> conversation.  qworst
> > objects because it was illegally obtained and because it is
> hearsay.  What
> > principle does the judge use to exclude it?  I am not exactlly sure, but
> > although it could survive the hearsay objection (because a
> tape-recording is
> > not exactly he-said/she-said), I am VERY doubtful that the tape would be
> > admitted as evidence.  This is because it is illegally gained,
> albeit only
> > under MT law, not AZ.  I can't cite the specific rule of
> evidence by which
> > it would be excluded, but it just would.
> >
> > Even if it was not excluded as evidence in the case you
> brought, qworst now
> > has ammunition to bring their own suit against you.  And they
> could try to
> > do it either in MT or AZ.  MT, however, may not have personal
> jurisdiction
> > over me bc I have never been there, and did not choose to have
> my call go
> > there.  This one is close.  But even so, qworst could bring
> suit against me
> > in AZ for violation of MT law.  This can be done.  I have seen
> cases where a
> > whole bunch of different state laws were broken, but the case was only
> > brought in one.  I have not seen a case like this one where
> only one law was
> > broken, but the case was brought in another.  But I don't have that much
> > experience, so what do I know!  I bet it could be done though.
> >
> > So now you have qworst by the nads, and they have you.  What
> has this gotten
> > you?  What's more, the evidence you have may be excluded by the Arizona
> > small-claims court because it was illegally obtained.  Then you are in a
> > case where the only one whose nads are had is YOURS.
> >
> > And don't forget that we have only been talking about civil law
> here.  Me v.
> > Qworst is civil.  But violation of wiretap statutes is a crime,
> at least in
> > some states.   Remember the prosecutors' in Maryland tried to
> get the nads
> > of Linda Trip for taping her phone calls with 'ole Monica.  The
> only reason
> > this prosecution was unsuccessful was because K. Star had granted her
> > immunity at the federal level for her actions; since fed. law
> trumps state,
> > no prosecution  nor no nads could be had.  But don't count on
> Star saving
> > your nads in this case.
> >
> > bye
> >
> >
> > ________________________________________________
> > See http://PLUG.phoenix.az.us/navigator-mail.shtml if your mail
> doesn't post to the list quickly and you use Netscape to write mail.
> >
> > PLUG-discuss mailing list  -  PLUG-discuss@lists.PLUG.phoenix.az.us
> > http://lists.PLUG.phoenix.az.us/mailman/listinfo/plug-discuss
>
> --
> I will not be pushed, filed, stamped, indexed, briefed, debriefed, or
> numbered!
> My life is my own - No. 6
> ________________________________________________
> See http://PLUG.phoenix.az.us/navigator-mail.shtml if your mail
> doesn't post to the list quickly and you use Netscape to write mail.
>
> PLUG-discuss mailing list  -  PLUG-discuss@lists.PLUG.phoenix.az.us
> http://lists.PLUG.phoenix.az.us/mailman/listinfo/plug-discuss
>