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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?
Duh? In what way? To me this looks pretty clear cut: this evidence - in this case - was 100% admissible, because it's not a wiretap. And here's why.
When making a phone call, you have a reasonable expectation that it is not being recorded. That's why law enforcement needs a wiretap order.
When sending a snail mail letter, you do not have a reasonable expectation that there will be no record of it after it has been received, nor that the recipient will not give it to law enforcement of their own free will, after they have received it. You have a reasonable expectation that it will not be intercepted in transit, but once it reaches the recipient to which you sent it, it's in their possession, you know it's in their possession, and it's fair game.
Pop quiz: do emails that you receive:
Given that you've ever received an email and know the correct answer to this, do you have a reasonable expectation that an email that you have sent will not be used by the recipient as evidence?
Perhaps Slashdot editors could consider taking a minute to read the article before kneejerking a commentary. I know it's a common lament, but this case is open and shut. The guy sent emails soliciting sex from a minor. The emails that he sent were given by the intended recipient to law enforcement after they were received. There was no wiretap. Perhaps the sender really was dumb enough to expect that there would be no record of his emails after they were received , but that was an unreasonable expectation, given that he was clued enough to send an email.
It's an interesting case, but it's really not about wiretapping or privacy or the evil feds. It's about a child abuser who was really dumb and got caught. The fact that it involves emails is neither here nor there - he might as well have been sending snail mail letters.
Are we all quite clear on that now? Please, please, please, read the news story before responding.
If you were blocking sigs, you wouldn't have to read this.
In most places the question is moot. You have a legal right to record an electronic communication with or without the other participant's knowledge or consent. An UC cop can record conversations or pose as a 15 yr-old in a chatroom, this does not require a warrant (I don't know if the cops need a warrant to send in someone wearing a wire. Anyone?)
In PA, on the other hand, you cannot record a telephone conversation without the consent of the other party - it is a technical wiretap even if the recording party is not a cop. Mr. Pedophile X-Cop is arguing that his e-mails and chats to the girl and UC cop are under the same protection. Prosecution is saying bullshit, anyone knows that by its very nature e-mail and IM is "recorded" - that a non-ephemeral record of the conversation exists by default.
Personally, I agree with the state. I don't think there is a reasonable expectation of the privacy of communication of this nature, if one of the parties involved chooses to make that communication public. If the cops were siezing this information from the ISP, or Mr. Pervert, or the 15-yr-old without warrant or consent, it would be a different story.
So with all due respect, I think you're wrong. This is just another ped asshole trying to sleeze out from under just consequences on a technicality.
It Is the Nature of Information to Transgress Artificial Boundaries
Although the press may be making this case out to be a landmark "reading email == wire tapping" case, it really isn't. It would have been different if the police were intercepting his email before it got to its recipient, or using spyware to read it from his computer.
GreyPoopon
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Why is it I can write insightful comments but can't come up with a clever signature?
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.