Wiretapping Dolce & Gabbana Flack's Weak DefenseS

A lawyer for Dolce & Gabbana flack Ali Wise—who was arrested last week on charges of eavesdropping and computer trespass—says it's not illegal to hack into someone else's voicemail without permission. Really?

Wise allegedly used a Spoofcard, which lets you send fake caller ID info with your calls, to gain access to the voicemails of interior designer Nina Freudenberger. According to the criminal complaint against her, she told the police, "I used the Spoofcard to get into Nina's voicemails."

Now Wise's lawyer, Mark Jay Heller, is telling Women's Wear Daily [sub. req'd] that there's nothing illegal about that:

He said authorities had misapplied new laws governing technology. The eavesdropping charge should be dismissed because, among other reasons, Wise had not overheard or recorded a conversation, Heller said. Of the computer trespass charge, he said authorities had not alleged or proven, "that Ali engaged in any ‘unauthorized' conduct in conjunction with a computer or computer service."

That sounds strange! Wise is charged with violations of Sections 156.10(1) and 250.05 of the New York penal code. Section 256.05 governs eavesdropping and wiretapping, and makes it a crime to "unlawfully engage in wiretapping, mechanical overhearing of a conversation, or intercepting or accessing of an electronic communication." An "electronic communication" is defined by the law to exclude telephonic messages, which would presumably rule out voicemails. "Mechanical overhearing" is defined by the law in such a way as to require a "conversation or discussion" to be overheard, which isn't the case if voicemails were the only thing being listened to. So that leaves "wiretapping," which the law defines as "the intentional overhearing or recording of a telephonic or telegraphic communication."

Voicemails are undoubtedly telephonic communications. Did Wise record them? It's unclear from the complaint, but if she did, then the law applies to her behavior. But even if she didn't, does listening to voicemails count as "overhearing" them? It certainly counts as hearing them. And the significance of the prefix "over-" seems like a very thin reed to hang a defense on. Heller is apparently arguing that "overhearing" something requires a live, ongoing two-way conversation. But Webster's—to which any judge would turn if confronted by such an argument—defines "overhear" as "to hear without the speaker's knowledge or intention." Which would be the case here. Case law exploring the definition of "overhear" as relates to the wiretapping stature might exist, but it seems unlikely at first blush that the word is a get out jail free card for Wise.

As for the other charge, computer trespass: It requires another crime, so if Wise isn't guilty of wiretapping, she's off the hook for trespass, too. But if she is, then she's also guilty of computer trespass if she "knowingly use[d] or cause[d] to be used a computer or computer service without authorization" in the commission of the crime. A "computer" is defined by the statute as:

A device or group of devices which, by manipulation of electronic, magnetic, optical or electrochemical impulses, pursuant to a computer program, can automatically perform arithmetic, logical, storage or retrieval operations with or on computer data.

A "computer service" is "any and all services provided by or through the facilities of any computer communication system allowing the input, output, examination, or transfer, of computer data or computer programs from one computer to another." It's hard to see how the servers that housed Freudenberger's voicemails in digital format wouldn't count as computers under the above definition. And it's hard to see how the system by which her cell phone—or Wise's—gained access to them wouldn't qualify as a "computer system." And if she used either of them without authorization in commission of a felony like wiretapping, well, then, that's illegal.