Slashdot Mirror
Appeals Circuit Ruling: ISPs Can Read E-Mail
leviramsey writes "The US Court of Appeals for the First Circuit (covering Massachusetts, Maine, New Hampshire, and Rhode Island) has ruled that e-mail providers are not violating the law by reading users' e-mail without the user's consent. The decision finds that the Wiretap Act does not cover interception of communications where the communications are being stored, not transmitted. Perhaps OSDN should send the defendant, accused in 2001 of reading users emails in order to find out what they were interested in purchasing from Amazon, a T-shirt from ThinkGeek?"
More words: This most certainly has to be overturned on a privacy bill of some sort. Imagine the widespread mail-reading that is now determined -at least in the mentioned juridstictions- to be legal. I wonder what ever happened to the privacy laws and how they match up to this new ruling (the ones that say a conversation is deemed to be confidential and cannot be disclosed outside of the circle in which it originated?)
I completely agree with "And he acknowledged that "the line that we draw in this case will have far-reaching effects on personal privacy and security."
... to start using strong crypto for our email? The technology has been available for free for years now, so what's stoping us? Why this inertia?
There are people that don't run their own mail servers? Well, I suppose that might change now.
If ISPs are not breaking any laws reading users stored email without consent, then why was there a huge fuss about Google using a parsing engine to do the same?! I would have thought that a parsing engine was more in line with privacy than someone reading your mail!!
I feel a tremendous schizm forming within the ranks of the American Legislature over this, with one side determined to force restrictions upon 'publicised' companies in an effort to make names for themselves, while the other side making rulings like this that will bearly make the main press. Something tells me not everyone is singing off the same hymnsheet.
Something died a little today. That something was common sense.
Oh god now they will know about my massive addiction to penis enlargers! seriously i don't use my isp account for anything important if they wanna know about penis enlarging treatments go fer it.
For The Best Jazz/Hip-hop fusion > COlD DUCK
If ISPs can read your emails, that stops them from being a common carrier anymore doesn't it? Which then means that they could be held legaly liable for any damages caused by illegal activity via email couldn't they?
T Money
World Domination with a plastic spoon since 1984
Fortunatly...
:-))
1) I'm not in USA;
2) I use gpg;
3) I'm wearing that t-shirt.
This is just as wrong as stupid: makes me remember how 2600 lost in court making links to illegal stuff illegal, when, after, others won in the same court prooving linking is just linking, not illegal (good for Google
It's frustrating when we clearly see that the laws are just bendable...
Mind Booster Noori
And to those who think encrypting your email is the answer - it's not. The email sent to you can still be read, and many sites like Amazon, which is mentioned in the article, send automated emails to whatever address you provide them, making your communications easy pickings for unscrupulous ISPs.
Of course, on the other hand, I'm sure some people here won't be surprised, and will in fact welcome such intrusion into their email, as evidenced by the enthusiasm here and elsewhere in geek circles for Google's Gmail service, which at least as intrusive and does the exact same thing with a user's emails (i.e. reads them for the purposes of marketing other products they think the user would be interested in). I'm still not sure what causes this cognitive disconnect in the technical community, but it is both puzzling and worrisome.
Software piracy is victimless theft.
grep -i -n -A 3 username * > password_list
thanks for that
There are places where the networks are not touching,and there are places where they are-Boeing's Lori Gunter
The US Court of Appeals for the First Circuit (covering Massachusetts, Maine, New Hampshire, and Rhode Island) has ruled that e-mail providers are not violating the law by reading users' e-mail without the user's consent.
In a way, I suppose, this ruling is a good thing, because it underscores the need for a comprehensive privacy and data retention law.
What's needed is something along the lines of The European Union's privacy law: that is, something that is explicitly mandated, rather then the "penumbras" of privacy that some judges can, and some judges won't, see lurking between the lines of the Ninth Amendment.
We can hope that this defeat in the courts can be -- with our hard work -- turned into a victory in the U.S. Congress.
Opinions on the Twiddler2 hand-held keyboard?
let me append this with the statement, don't put the government in a position to legislate something when we have the ability fix the problem ourselves.
Wow, that got me thinking. ISPs are not held liable for piracy, hacking, etc, because they are a "common carrier." Common carriers have no knowledge of the traffic they carry, they are simply moving things from point A to point B. That limits their liability.
Now, though, the court (in those jurisdictions) has ruled it is legal for ISPs to, at the least, read e-mail. Since it is ruled legal, and they are able, does that confer some responsibility to them?
Thinking this through to conslusion, what are the odds that the ISP defending itself in reading the e-mail, has in fact increased its liability in all things its customer's do and have done to them?
Sarcasm and hyperbole are the final refuges for weak minds
I don't think the judge understood what he was saying. In ruling that email messages are being stored, not transmitted he completely ignores the fact that the only reason that email is sent to an ISP is so that it will be transmitted. The asynchronous method of delivery really shouldn't enter into it. However, if that is the language of the law, then that is that...
This ruling would also mean that you voicemail at your cellphone provider is wide open to being listened to as well... Nice...
Lets try to be a little rational here. I know that everyone is going to scream in the typical slashdot style about "invasion of privacy!!!!!", but lets really look at the problem.
The first thing is to understand what the Judicial Branch's job is. It is to interpret the meaning of existing laws! And looking at the law, it seems that they did a pretty good job of this.
So does this mean that I want my ISP's reading my email? Of course not!
The problem is that the legislative branch is not creating laws that keep up to speed with the ethical problems presented by technology. Lets not get on the Judges' cases for the ISPs reading our email, get on the LEGISLATORS.
In fact, I want to congratulate the judges in this case for making the ruling. Even though it is obvious that it is absurd that the ISPs are reading people's email, the judge did not overstep his authority by trying to create laws, rather than interpret them. This is one of the largest tyrannies that happens in US Politics, judges effectively creating legislation.
So here is a call to all legislators: GET ON THE BALL! New technology has created many new ethical dillemas, and we need the legislators to start dealing with them.
Wow. This is a huge, huge, huge deal.
Among other things, this means:
* Email, the dominant form of online communication, which most of us have regarded as fairly secure, is now grabable by federal authorities or police *without a warrant*.
* Your employer may now read all your email -- previously, he had to at least inform you that he was going to monitor your network traffic ahead of time (admittedly, including such a clause in the usage policy was depressingly common, but still).
* Free email providers like Yahoo, Microsoft, and Google now are free to do anything they want with all the mail that you've ever sent or has been sent to you.
I'm sure that the EFF is scrambling to try and do something at the moment -- it'll be their most important case yet.
*IF* this is not overturned, it means that it is *impossible* to have legal privacy protection for any form of communication that is asynchronous across hosts. This affects a vast number of potential protocols.
This means that voicemail systems are *not* protected by federal wiretapping law. If you *ever* leave a message for anyone, your privacy protections are out the window.
It's debatable over whether or not this applies to web caching -- if police and federal agents can now swipe the content of your ISP's web cache (yeah, the transparent proxy that your cable ISP uses, even though you don't think you're using a proxy), they can obtain web browsing data without warrant.
This is the biggest argument I've seen yet for use of PGP. If you are not using PGP, you *have* no privacy.
May we never see th
so is there anyone out there who actually thinks your email to me is actually private and won't be read by an admin of a server that queues it for delivery somewhere along the way??
it's email. there should not be any real expectation of privacy. deal with it.
"We are not tolerant people. We prefer drastically effective solutions"
There's a minor problem with your argument. ISP's are not common carriers
http://www.cctec.com/maillists/nanog/historical/00 10/msg00012.html
What about analog signal delay chips? What about digital phone systems that temporarily store signals in RAM? And if volatile memory is considered transmission instead of storage, what if they used MRAM in the future?
Others summed it up with "stupid", but "stupid" just doesn't seem to come close.
I'll bet some ISPs are madly looking at what they have that they could market to the tabloids. Anyone out there have some Senators or Representatives as clients? Publishing all of their email might get a law out quicker than you can say "stupid".
ISPs can read e-mail? Finally. Now maybe someone at an ISP will reply to the several dozen "One of your customers is sending me spam" messages. It's about time ISPs got around to reading e-mail.
Now to read the article ...
Okay Thunderbird, here's your chance to shine. Make sending and receiving of encrypted e-mail as easy as regular e-mail is now.
"It's the height of ridiculousness to say for those 9 lines you get hundreds of millions."
Sorry for not including citations of cases, but I believe the courts have held that email users have no expectation of privacy when sending mail over others systems (I think most pertained to University systems, but dont quote me). In fact, this makes sense- SMTP is inherently insecure, from a privacy perspective. If you want to compare it to snail mail, imagine mailing private letters with no envelope. Anyone between point A and B can read it. You cant complain if you later learn the postman read it when he was bored.
That said, you must take the case in context- all that was ruled here was that a (technologically speaking) ancient wire tapping law didnt apply to this specific case of email, because the message was stored in RAM, not actually in transport. If the company had been snooping on packets coming from *your* mail server, I suspect the result might have been different. Further, no other law was tested here- the case was solely over this wiretap law.
In a perfect world, no one would do this, and we'd all be sending encrypted mails anyway. What should be required is a privacy policy clearly stating the administrator's policy on email reading (ala Gmail), so that the educated consumer may choose the provider most suitable for his/her needs. If a company wants to read your mail in exchange for a free gig of mail space, I whole heartedly believe that to be within their rights, providing they are upfront about it. That this provider gave no warning of it was a non-issue as far as the case was concerned- only the wire tap law was ever used.
Given the context of the case in regards to the wire tap laws, and the history of expectation of privacy in email, this ruling shouldnt suprise anyone. What we should be doing is pushing for European-style privacy acts and some sort of required disclosure for service providers pertaining to email snooping.
I also dont see this as a danger to the common carrier status of ISP's-if indeed they ever had this status with regard to email. This ruling is very specific, and does not mandate that ISPs *must* read their users mail, only that if they do, they arent in violation of a specific wire-tap law. I believe what we have here is a judge who just refused to legislate from the bench.
This ruling is just plain wrong. Here's text directly from the Electronic Communications Privacy Act. Straight from the definitions:
(1) "wire communication" means any aural transfer made in
whole or in part through the use of facilities for the
transmission of communications by the aid of wire, cable, or
other like connection between the point of origin and the point
of reception (including the use of such connection in a switching
station) furnished or operated by any person engaged in providing
or operating such facilities for the transmission of interstate
or foreign communications for communications affecting interstate
or foreign commerce and such term includes any electronic storage
of such communication;
and then later...
(17) "electronic storage" means--
(A) any temporary, intermediate storage of a wire or
electronic communication incidental to the electronic
transmission thereof; and
So, it pretty clearly states that wire communications includes storage incidental to the communication, such as the email temporarily existing in RAM on a system before being sent. Given that RAM is typically volatile, I don't see how you could NOT call it temporary, intermediate storage.
There are no exemptions that I can find in the ECPA that might give this scumbag a way out of this. Either the judges are smoking crack, or the prosecutors failed to use the ECPA properly. I suspect it's more of the latter, as even the dissenting judge said that "the law has failed to adapt to the realities of Internet communications." This simply isn't true, because it's quite well defined in the law. The law HAS adapted to the realities of the Internet, and the ECPA is mostly quite adequate.
Here's a mirror of the full ECPA text for those curious:
ECPA text
Sorry, first time through all my quotation marks and apostrophes were swallowed.
There are many comments here about how the judges must be stupid and don't understand the technology, and that's why they ruled this way, etc. etc.
I find it obnoxious that many of the commenting /.ers apparently never bothered to read the opinion or try to understand what the court is really deciding and the grounds for their decision. The article submitter is himself one of the greatest sinners in this respect.
Listen to me. Unless you try to understand what the law is and how judges are supposed to apply the law and read this decision carefully, you are not giving them the level of respect that you expect them to give to you, the technical community. The judges work with a technically complex and intricate art, much like us programmers. Moreover, the judges' actions have profound consequences: they send people to jail and make people pay millions of dollars to each other with their pronouncements. That's an awesome responsibility. Do you really think they are "stupid" just because you may not understand their decision at first glance?
Let me try to explain what is going on in this case.
First, this is a criminal case. The government is charging the defendant ISp with violating the Electronic Communications Privacy Act ("ECPA") or commonly called the "wiretap act." In a criminal case, the courts try to construe the statute as narrowly as possible so that they make sure the government is only sending people to jail when it's clear that's what Congress intended. That the courts are careful in this manner is a good thing , if you value our freedom.
Next, the court looked at the statute carefully and found that it defines two types of communication: "wire communication" and "electronic communication." It then noted that the statute clearly gave different levels of protections for the two. Wire communication is given a lot more protection than electronic communication. Whereas "interception" of wire communications while in transmission and while in "electronic storage" is clearly illegal, only "interception" of electronic communication is made illegal. The statute made it clear that obtaining an electronic communication while it's in electronic storage is not covered as a punishable crime. Congress quite clearly meant for different treatment to be given to wire communication versus electronic communication. Electronic communication in electronic storage are just not covered by the statute.
Thus, the court ruled that the government couldn't prosecute the defendant under the ECPA.
THAT'S IT! Okay? That's all the court held. Just that the government can't prosecute the defendants under this particular law. They are not saying "ISPs Can Read Your Email" -- as the headline sensationally claims. They are not saying privacy is not important. They are not saying emails are equal to postcards. They are just saying that this particular law did not cover what the defendants did. That's all.
And quite honestly, the court is doing its job correctly. For the court to rule the way most of you would like here, the judges would be making law, and what's worse, making a criminal law. Most of us would be appalled by that idea. Congress should do so, not the courts.
Let me be clear, the judges here understood what was going on technologically very well. They recognize the force of your arguments and concerns about privacy, but their hands are tied. They lament, quite movingly, that "it may well be that the protections of the Wiretap Act have been eviscerated as technology advances" and go on to say, "We observe, as most courts have, that the language may be out of step with the technological realities of computer crimes." This is a clear call for Congress to do something about the problem.
They are interpreting the law as they should, and the ancient wiretap act clearly was made at a time when people didn't care much about "electronic communication" and it is our duty to convince Congress to change the law so that the courts will have the power to hand out justice to these privacy violators.