Slashdot Mirror
PA Supreme Court Decides if Reading Email==Wiretap
An anonymous reader noted that "Excite is reporting that the Pennsylvania Supreme Court is taking up a case to decide the question may police look at a suspect's email and instant messages without first obtaining a court order. The defendant, a former police officer, is also claiming his Fourth Amendment privacy rights were also violated. The outcome will only affect Pennsylvania but the issues at hand may eventually reach the US Supreme Court." Umm...
Duh?
This is a case with possibly extremely dangerous outcomes. The scary thing is that a wiretap may only have the possiblility of being picked up, but what makes the email dangerous is the fact that there is a minimum two copies of it still floating on the internet, One on your server (depending on how you set up your server), and one on the opposite server (that you cant even control). While that alone might be scary enough, there are still the possiblities of old emails being stored on tapeback up for recovery purposes and who knows where they will be forwarded to. Further complicating this would be the fact that this wiretap access may be retrived on any of the affected servers with feds trying to pressure anyone to releasing the documents "voluntarily". Hope for the best in this, but prepare for the worst
~~~~~~~~~
Victory is gained, not in knowing your opponents next move, but in preempting them.
So really it comes down to asking if people can have an expectation of privacy.
I'm going to say it will probably be no. Police are allowed to monitor cordless phone conversations without a warrant, even though people might not realize that those conversations are being broadcast.
In a similar way, if I sit downstream for you on a cable line or LAN, I most certainly can listen to conversations without doing too much intrusion. Maybe people will begin to pay attention to security if this keeps happening.
I demand a million helicopters and a DOLLAR!
This is by no means an obvious case. The difference between intercepting Internet communications and, say, communications on a phone line, is that the Internet is inherently unsafe, and information is publicly available. Every packet you send can be examined along each router through which is passes.
Wouldn't this also be true of telephone conversations? Before the advent of digital communications, wasn't a telephone connection merely a connection of two phones sending information in a manor that was inherantly unsafe? I knew that anyone who could splice wire could listen to my conversation. Does that make it so that wiretapping laws don't apply? Think again. The only issue at hand is what is continually happening: People (Courts, Police, General Population, etc) believe that just because something is digital different laws should apply. Just as someone with a clue can open a letter in the post office (read: police officer) and reseal it without me knowing, someone can read your IMs. If this is upheld in court, I don't understand what is stopping polic from just reading mail.
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 wonder if these 12 states consider a defendant giving permission to recording phone calls or releasing IM logs to be a sort of self-incrimination, thus violating the 5th Amendment?
It's interesting the some state do and do not allow this.
I'm not afraid of falling, it's the sudden stop at the end that frightens me.
- the messages were intercepted after the fact. So there was no wiretap
but
- PA is a "two-party" state. To me, that means that the girl (or parent/guardian) would be theoretically subject to separate prosecution (a la Linda Tripp) for giving up the messages (if they are indeed considered to be the same as recording a phone converstaion, which I find doubtful) but they should still be admissible in this case.
One CPU cycle wasted on digital restrictions management is ONE TOO MANY.
WTF? sounds like the girl submitted the conversation to the police (smart girl.). + the pedafile solicited sex with a police officer posing as a 15 year old. what wiretap? don't tell me soliciting sex with a 15 year old is free speech either.
Oh, maybe you thought that just because it is somewhat easier to snoop internet traffic that it is therefore OK. The whole point of protections against unwarranted search and seizure is to say that the authorities aren't even allowed to try.
I make no argument about the moral correctness of snooping. Personally, I like nearly every court case that restricts the power of the government. However, my point is that in terms of how the court will interpret the relevant laws regarding this matter, it's not obvious.
The phone network is highly regulated in the laws, and the Internet is not. In addition, packets may be sent whichever direction on the Internet in order to arrive at their destination. The sender has no control over who gets to see the packets. It seems that yes, there is indeed a difference that the courts may rule differently.
Social Contract? I don't remember signing any Social Contract!
So it is not simply that one participant alowed the police to view the logs. Unless we are taking as a presuming that everyone assumes that all conversations are recorded/logged by both parties. While agree that the topic may be a little misleading, this is also going to be an interesting case to follow.
An interesting turn would be if the court ruled that the girl logging (if that is in fact what was turned over) was a violoation of the other users privacy right as he did not consent to her logging the conversation.
-OctZ
"... likening an e-mail message to a message left on a telephone answering machine."
It may be only my opinion, but there's a huge difference between the use of a delivered email and the monitoring of every communication from the computer.
It would okay for a written letter, sent by an accused party to a victim, to be used as evidence with no warrant (AFAIK) - if the letter was submitted after delivery (EG: submitted by the victim). There's a big difference between this and checking every letter that the accused mails. As the judge implies: monitoring a telephone conversation is different to retrieving a recorded message on an answerphone. One is monitoring or tapping of [all] communications, and the other is collection of a single item.
IMO the same distinction should apply to monitoring outgoing email from a person's computer or account: a single email that's already delivered into someone else's inbox shouldn't require a surviellance warrant. Monitoring everything a person sends is akin to a telephone wiretap, but this isn't the case in the story given.
As another thought: is there a law/precedent governing ownership of such communications? I would suspect that, upon delivery of a paper letter, the ownership of the letter & its content transfers to the recipient. Wouldn't this also apply to email? Once the email is delivered, the recipient can use it as they wish unless other laws (copyright, etc) apply to the content.
In case nobody has bothered to figure this one out, wiretaps and e-mail are both covered under this federal law. Give it a read sometime.
Upon reading this thread further, I've also changed my mind about the wiretapping definition. Wiretapping, it seems to me, is something that records a conversation neither party expected to keep a record of, or give others easy access to. Voice conversations clearly fall into this area, because as soon as they are spoken, they're understood to evaporate. But most people know that email is not priviliged communication (as shown by employers monitoring/reading employees' emails, and text of emails being subpoenaed for various purposes).
Many people here seem to be surprised that whether this is wiretapping is even a question -- as if it should obviously be classified as wiretapping. But if we take the approach that whatever you do on the internet may be public information (no guarantee of privacy), then reading someone else's public messages might not be infringing on privacy -- there was no expectation of it to begin with! Just because someone hears or sees you do something, doesn't mean that your privacy was invaded!
However, I am interested in seeing what the courts have to say about this, as my interpretation is only a casual one. As people come to expect more privacy from the internet, will the law extend the privacy people expect? Are encrypted email messages entitled to special protection? I wonder what instant messages between cellphones will be classified as? Will these be priviliged "wire-tappable" communications?
The story has more holes in it than most hollywood plots of late.
It sounds like the girl went to the police about it, then the police posed as a 15 year old to catch the guy.
I don't see where any wiretapping or anything similar went on. Obviously the girl went to police after the fact, so they couldn't tap into that. Perhaps she brought a printout of the conversation - it doesn't say. And then when the police posed as the 15 year old, they caught him in the act.
About the closest is says is that the police looking at the messages should be subject to wiretap procedures - however, I'm guessing that the girl took the messages to the police. Nothing was recorded by the police - this is akin to the witness saying the defendant said such and such in a phone conversation with me, but with photographic memory.
I could see his complaint if the police had intercepted the messages in real-time by tapping into the line of communication (a sniffer at the ISP or something like that).
I suppose he could have claimed the girl modified the content of the messages in the printout if one existed, but since he got caught red-handed...oh well.
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.
E-mail falls under Internet communication and thus requires monitoring consent of the 15 year old (or her parents) AND the police officer. Having a reasonable expectation that communication will be recorded is different from consenting to monitoring. It will be interesting to see wether the courts accept this.
The legal status of review and interception of unencrypted communications is a deep and fascinating inquiry. Virtually all these questions come down to the simple-sounding issue of whether the communicating parties had a "reasonable expectation of privacy."
The fundamental difference between telephone lines and internet communications derives from its "party line" nature -- interception isn't necessarily interception per se. Indeed, e-mail is in many respects much more like a postcard than a sealed envelope, and it is well-settled that postcard communications are NOT "private," although entering land to open a mailbox to see it WOULD be a violation.
But such analogies are fruitless, for they are always flawed. This is neither a postcard nor a sealed envelope nor a proprietary switching network -- it is an internet communication. There are separate laws that govern conduct on such networks, and these laws are different from general wiretap laws.
Lawyers have been battling over the question whether the use of unencrypted e-mail for attorney/client discussions constitutes breach of attorney/client privilege or the attorney's obligation to maintain a client's confidentiality. Unsurprisingly, the issue comes down to the same basic question -- reasonableness of the conduct and a reasonable expectation of privacy.
The vast majority of ethics rulings (non-binding administrative opionions published by state bars and the ABA) seem to treat e-mail the same as telephone communications, because there exist laws, in particular the ECPA and the CFAA that criminalize interception of transmissions. But those opinions may not be the law -- and certainly they were based upon a severely flawed (that is, oversimplified) understanding of both the relevant laws (which do not apply to many third parties, such as ISPs and the police in particular) and the technology itself.
This case may hit on those questions as they necessarily address "reasonable expectation of privacy." It will be fun to watch. Hopefully something useful will result.
Statutory rape, emotional maturity, blah, blah, blah all aside - this is not pedophilia. Maybe a bit perverted, but not as much as a few rightous people would like to think.
In both cases, existing law provides for signifigant protection on data in transit, so all the people blathering about how since you can snoop any packets coming over your router it's the same as broadcasting on CNN might want to perk up as well. (BTW, there's a large difference between scanning headers and whatnot with automated scrips to route packets and actually having a live human or heuristic algorithm to store/redirect them based on content)
How come we praise the hackers for doing something we condemn the government for?
I want to make sure the government doesn't look in on me. If you can find a hole, and tell me, I can fix it.
MSIE: The world's most standards-complaint web browser.
Computer sends e-mail over the Internet.
The Internet is made of wires.
Therefore, E-mail == communications made over a wire.
Wire tapping == listening to communications made over a wire.
Anyone else see what I'm getting at?
Why does a court even have to rule on this? Existing laws should have this covered. I never understood why laws are either too broad or too narrow.
CAn'T CompreHend SARcaSm?
- Hackers don't kick your door in.
- Hackers don't publicize your name as a "suspect", thus destroying your reputation.
- Hackers don't pauperize you with legal costs.
- Hackers aren't prosecutors concerned with obtaining as many convictions as possible.
- Hackers cannot put you in prison.
- Hackers cannot shoot you dead if you try to get away.
- Hackers don't joke about your future rape schedule in their prison.
- Hackers can't hold you indefinitely in an undisclosed location without counsel or contact.
- Hackers can be a nuissance, but they rarely destroy your life.
- Hackers aren't your government.
One thing that everyone seems to be missing is that a wire tap is evidence that is very well documented. The date/time of the recording is testified to and the recording itself of someone's voice is very diffult to fake. What if the situation was: Girl and Guy meet in Internet.. chat and email for awhile. Girl gets attached to Guy.. Guy finds out she's 15.. (holy sh*t).. stops emailing her, stops chatting with her. Girl now upset at Guy, feels betrayed. Takes emails received from guy, pulls them up in Word, modifies email to incriminate the guy, prints them out and send them to the police.. Guy is now in trouble. Yes, all the ISP logs show he was logged in at the time, and the sendmail logs all confirm that he sent the email. We've got a real pervert here. Not that I am saying that this is what happened. But it is a possibility. A printed email is hearsay because it is easily modified. If, as in this case is was introduced as evidence, it should have been disregarded as hearsay. But if the police did have a wiretap (email-tap?) which showed the IP packets in full detail, with date/time, etc, then they wouldn't be hearsay and would be proof.