People v. Gariano

Daniel Everett was a Chicago Police Department investigator who investigated crimes against children committed over the Internet. Using a screen name, Everett created a profile of an underage teenage boy, monitored AOL chat rooms, and waited to be contacted through AOL’s instant messaging. David Gariano (defendant) corresponded with Everett through AOL messaging. Using their screen names, Everett and Gariano had several instant-message conversations about sex and agreed they would meet at Gariano’s apartment to engage in sex. Everett used a computer software program to record and transcribe his instant-message conversations with Gariano. Everett did not obtain Gariano’s consent to transcribe the instant messages. Gariano was arrested when he was observed at the agreed-upon meeting location and subsequently charged with indecent solicitation of a child to commit aggravated criminal sexual abuse. An expert in computer forensics and AOL protocols testified at trial that an AOL instant message was a private one-on-one electronic conversation similar to a telephone call between two people and no third party other than a hacker would be privy to the messages. Gariano was convicted and argued on appeal that the trial court erred in denying his motion to suppress the instant messages transcribed without his consent or a court order.