Would public chat servers be considered public spaces or communications, for recording purposes?

Question

By this definition, a public place is generally

an area, whether privately or publicly owned, to which the public have access by right or by invitation... but not a place when used exclusively by one or more individuals for a private gathering or other personal purpose.

Take, for example, a Skype group or Discord server to which the join link is publicly available. This seems to fit the public definition quite nicely. It's also arguable whether the chatroom members have reasonable expectation of privacy, a la the Wiretap Act.

If, say, someone were to record conversations on such a server and later disclose them, would this be considered recording in a public space? Does the size of the server matter? Has this happened before, and if so, is there any precedent I might be missing?

Answer 1

There are two kinds of jurisdictions in this matter, one where some participant must consent to the recording, and thise (a minority) where all must consent. California is an all-party consent state, so we can take that as the highest hurdle that you have to clear. Cal. Penal §632 say (emphasis added)

A person who, intentionally and without the consent of all parties to a confidential communication, uses an electronic amplifying or recording device to eavesdrop upon or record the confidential communication, whether the communication is carried on among the parties in the presence of one another or by means of a telegraph, telephone, or other device, except a radio, shall be punished by a fine not exceeding two thousand five hundred dollars ($2,500) per violation, or imprisonment in a county jail not exceeding one year, or in the state prison, or by both that fine and imprisonment.

The definition of confident communication is important:

For the purposes of this section, “confidential communication” means any communication carried on in circumstances as may reasonably indicate that any party to the communication desires it to be confined to the parties thereto, but excludes a communication made in a public gathering or in any legislative, judicial, executive, or administrative proceeding open to the public, or in any other circumstance in which the parties to the communication may reasonably expect that the communication may be overheard or recorded.

There have been two standards regarding the reasonable expectation of privacy, one that is about recording, and one about disclosure (which would allow recordings if not disclosed). The California Supreme Court found in favor of the "no recording" interpretation

Under the construction adopted here, the Privacy Act is a coherent statutory scheme. It protects against intentional, nonconsensual recording of telephone conversations regardless of the content of the conversation or the type of telephone involved. In contrast, the O'Laskey standard urged by Honorine and adopted by the Court of Appeal would provide significantly less protection from surreptitious eavesdropping or recording when both telephones are landline telephones, a distinction that lacks any justification in terms of the purpose of the Privacy Act.

Internet "chat" communication poses some interesting problems regarding objectively reasonable expectations, and we don't want to get bogged down in OT technical questions. The public / private distinction could be relevant because communications made in a public gathering are statutorily excluded. The law does not define "public" or "gathering", but it is unlikely that the court would hold that a gathering can only exist when the bodies involved are in a single location. There does not seem to be any precedent that tells us whether an openly accessible online chat room is a "public gathering", so the courts may need to look into legislative intent to see whether a chatroom is or is not one (it's hard to see how they would not find a chatroom to be just like a physical gathering).

Even without such a determination, the question is whether a person has an objectively reasonable expectation of privacy. I don't see how one can have such an expectation in an open-to-all chatroom. Anyone can drop by; you probably are announced when you enter and leave; you know, or should know, that the internet keeps track of everything. It would be possible to create a chatroom with a privacy expectation, but if we take SE chatrooms as a model, there is zero expectation of privacy.

Answer 2

The linked definition deals with where people may or may not smoke, so it's not really applicable to recordings.

For wiretapping purposes, they public-nonpublic distinction isn't really relevant. The question is how many parties to the conversation consented to having it recorded and how many your state requires consent from.

Disclosure of those recordings is a totally different matter. If the conversation was legally recorded, a person in possession of that recording would probably not have any problems under wiretapping laws, but he might have problems with a privacy lawsuit, depending on what is disclosed. A recorded Skype conversation between a woman and her rape crisis counselor, for instance, would be pretty risky to disclose; a recording of Donald Trump directing Putin to put his payments into a particular offshore account would probably be fine.