Government Has a Right to Read Your Email?

gone.fishing writes to tell us that a new lawsuit is challenging the government's right to read your e-mail. The Minneapolis Star-Tribune is reporting that a seller of "natural male enhancement" products sued after a fraud indictment based on evidence gleaned from his electronic mail. Federal prosecutors say they don't need a search warrant to read your e-mail messages if those messages happen to be stored in someone else's computer."

Comments

What part of

[Marxist Hacker 42]

No Reasonable Expectation of Privacy in the Public Domain don't you understand?

Like it or not, the Internet was built by the Federal Government- and it very much is the public domain. Any message sent across it unencrypted is just as much fair game for prosecutuion as taking a picture of you mooning other cars on the freeway.

Re:What part of

[AcidLacedPenguiN]

Any message sent across it unencrypted is just as much fair game for prosecutuion as taking a picture of you mooning other cars on the freeway.

You mean they can get me for that??

Re:What part of

[Mr. Underbridge]

Like it or not, the Internet was built by the Federal Government- and it very much is the public domain. Any message sent across it unencrypted is just as much fair game for prosecutuion as taking a picture of you mooning other cars on the freeway.

That's not the argument they're making. They're arguing that since you don't own the computer the message is stored on, you have no right to privacy.

That makes no sense, however. I don't own the phone network once it leaves my house (more precisely, the NID), but I have a right to privacy as defined by quite a bit of legislation.

Like it or not, the Internet was built by the Federal Government- and it very much is the public domain

Don't know where to start with this one. First, when we talk about "public domain," we're talking copyrightable works. The internet isn't copyrightable. Second, the government doesn't own the individual links in the internet backbone.

In short, I'm having a hard time seeing why an unsecured communication between two people should be protected when it's a phone conversation taking place over, say, Verizon-owned fiber, but not if it's an email saved on a Verizon-owned hard drive.

Re:What part of

[AdamKG]

Any message sent across it unencrypted is just as much fair game for prosecutuion as taking a picture of you mooning other cars on the freeway.

I deny everything.

Re:What part of

[LOTHAR, of the Hill]

The question can be considered from

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, "

Can emails you send be considered your "effects"? It's a good question.

Re:What part of

[mattmacf]

This has nothing to do with Public Domain and everything to do with WHO has the expectation of privacy.

An analogy if you will. Suppose you and I commit a crime, the evidence of which is stashed at your house. The police come busting down your door without a warrant and find said evidence. In this case, your right to privacy has been violated and the evidence found cannot be used against you. However, this evidence can still be used against me. Why? Because I had no expectation of privacy IN YOUR HOUSE. As far as the law is concerned, the evidence found against me is as legitimate as if you had turned it in yourself.

Back to the email thing, the minute you send an email to an outside party, you voluntarily concede your expectation of privacy as YOU were the one who freely divulged whatever information was in that email.

Re:What part of

[manifoldronin]

Any message sent across it unencrypted is just as much fair game for prosecutuion as taking a picture of you mooning other cars on the freeway.

No, reading a server log entry indicating I sent you an email would be like taking a picture of you mooning other cars on the freeway.

Re:What part of

[Marxist Hacker 42]

Different public domain. When you're talking privacy laws, the Internet is more like FedEx, UPS, or your local city park than it is like a phone line or the highly protected US Mail.

Re:What part of

[Marxist Hacker 42]

Can emails you send be considered your "effects"? It's a good question.

I'd say NO- for the very reason put forth by the Feds. Once you send it out, that copy of the data belongs to the ISP, not you. No different than committing a crime in front of the local police station when you get right down to it.

Re:What part of

[ArcherB]

--> Any message sent across it unencrypted is just as much fair game for prosecutuion as taking a picture of you mooning other cars on the freeway.

You mean they can get me for that??

Only if they run the image through their new ass-recognition software.

Re:What part of

[Joebert]

If you have a Tattoo on your ass.

Re:What part of

[Anonymous Coward]

I have to have a dissenting opinion. E-mail's are not part of you effects becasue they are already covered as part of your papers, even if they are not physical printings.

Re:What part of

[grylnsmn]

That's not the argument they're making. They're arguing that since you don't own the computer the message is stored on, you have no right to privacy.

That makes no sense, however. I don't own the phone network once it leaves my house (more precisely, the NID), but I have a right to privacy as defined by quite a bit of legislation.

That right there is the key. There is quite a bit of legislation protecting phone conversations. There isn't similar legislation in the case of emails.

In addition to that, the police do not need a warrant if they have permission from the owner. For example, if you get pulled over by the police, they don't need a warrant to search your car if they ask you for permission and you say "yes". Similarly, if they ask Verizon for the emails in a user's account, and Verizon gives it to them, it is perfectly legal without a warrant. The theory is that if the owner does not object to the search/seizure, then it must not be unreasonable.

Re:What part of

[Joebert]

Then an undercover female officer takes a picture of the tattoo on your ass while she has you handcuffed to the bed, then you're fucked, but not the way you'ld like to be.

Re:What part of

[camperdave]

Nice thread/sig synchronization there.

Re:What part of

[Qzukk]

It's not the "public" domain anyway, it's in the possession of Earthlink, AT&T, or whoever owns whatever particular machine it happens to be on at the time.

If the government is getting it off of one of these privately owned servers, then either the owner is giving it to them, or they had better have a search warrant for it.

Re:What part of

[Marxist Hacker 42]

Yep- and just as a paper you nail to the telephone pole down the street becomes a part of the public sphere and no longer your property, so too is it with e-mail when you hit SEND. I like your analogy- you just didn't take it far enough.

Re:What part of

[TheUnknown]

I agree with your post but there's a small detail I want to correct. In your example, if you are a customer of Verizon, they might not be able to legally give your emails to the police without a warrant. That depends on the contract they have with you (most likely the TOS). But it is likely the TOS does not include such protections for you.

Re:What part of

[spun]

So if I send a work I've copyrighted through email, the ISP owns it? Damn! Should the Fed have the right to open your snail mail, too? What's the difference? Even when in public, I have a right to reasonable privacy. For instance, it's illegal to take pictures up someone's skirt. UP their skirt, you know, from ground level? If someone happens to be leaving a car and wearing no undies, that's different.

You seem to be making up legal precedent to suit your argument. The internet is not "the public domain." How is it different than phone lines? I mean, your phone conversation passes through many different telcos and any of them could easily listen to your conversations, but this is illegal. How is the Internet different? Don't ISPs have common carrier status, and doesn't that preclude them from monitoring your communications? And doesn't the government have to play by different rules ayway? In the US, our government is bound by the Constitution which precludes them from doing certain things that a company could do.

In short, your argument makes no sense It almost seems as if you are being contrary just to be contrary. I can say that black is no different than white, but that won't make it so any more than your claims about our legal and governmental systems make them true.

Re:What part of

[grylnsmn]

I agree with your post but there's a small detail I want to correct. In your example, if you are a customer of Verizon, they might not be able to legally give your emails to the police without a warrant. That depends on the contract they have with you (most likely the TOS). But it is likely the TOS does not include such protections for you.

They could still legally give your emails to the police, but then they would be in breach of contract. At that point, you would have to file a civil case against them. The emails would still be considered admissible evidence in a criminal case against you.

Re:What part of

[Marxist Hacker 42]

Thank you for the first INTELIGENT post that actually pokes a hole in my argument. You're completely correct- to a certain extent. But since these are corporate entities rather than private individuals, they often play by a different set of rules- if it isn't forbidden by a policy in their charter or by your contract with them, you've got no reasonable expectation that they're not just going to hand it over to whomever asks for it.

Re:What part of

[vertinox]

In this case, your right to privacy has been violated and the evidence found cannot be used against you. However, this evidence can still be used against me. Why?

IANAL, but something about this tells me that a decent lawyer could find something to get this evidence dismissed against both parties due to improper police handling of evidence.

The better analogy would be that you rent out storage space at the local long term storage places and store your evidence there.

The police come and ask the storage space owner to search your space. Your a customer of his, but chances are the storage owner doesn't care enough about you to demand a warrant so it is a moot point whether they have it or not and grants them permission.

However, the key question is here does that rented space count as requiring a warrant since it is indirectly leased to you.

For some reason (someone correct me if I'm wrong about this) but as far as I know search warrants are still required for apartments for the residents even if the landlord agrees and gives the police a key to get in.

This is one of the reasons Landlords must give 24 hour notice before they enter the apartment etc.

The key question here if your email space on the server is considered "lease property" and technically owned by the persons paying for the space.

Re:What part of

[jacem]

To add to your point. Letters in seeled envelopes {sp} are protected postcards are not. If I send a postcard I can't assume that only the addressed recipient will turn it over and read it. But, I can assume the the seeled envelope will arrive seeled.

JACEM

Re:What part of

[pluther]

Once you send it out, that copy of the data belongs to the ISP, not you. No different than committing a crime in front of the local police station when you get right down to it.

Sure it's different.

By your reasoning, any letter you send is property of the Post Office, therefore they have the right to read it without a warrant.

And any phone call you make is property of the phone company, therefore they have the right to listen in to it without a warrant.

While both of these have certainly been done (and not just by Bush and Friends), there is significant dispute over their legality, even after the outgoing congress passed a special new law to legalize ongoing activity.

Re:What part of

[Marxist Hacker 42]

So if I send a work I've copyrighted through email, the ISP owns it?

They own that copy- which you as the copyright owner freely gave them by ASKING THEIR E-MAIL SERVER TO MAKE A COPY!

Damn! Should the Fed have the right to open your snail mail, too?

They did with US Mail before they passed a bunch of laws making it illegal. They still have the right to open snail mail sent through FedEx, UPS, or a half dozen other private carriers.

What's the difference?

The difference is that the laws haven't been passed to make snooping on e-mail illegal. Or for that matter, UPS and FedEx packets.

Even when in public, I have a right to reasonable privacy.

Not by the Supreme Court, who ruled that you have NO reasonable expectation of privacy in the public sphere.

For instance, it's illegal to take pictures up someone's skirt. UP their skirt, you know, from ground level? If someone happens to be leaving a car and wearing no undies, that's different.

Yes, but that's a different special exception law- like the special exception of privacy in the US Mail. No such law has been passed for the Internet yet.

You seem to be making up legal precedent to suit your argument. The internet is not "the public domain." How is it different than phone lines?

The laws haven't been passed to make ISPs common carriers yet.

I mean, your phone conversation passes through many different telcos and any of them could easily listen to your conversations, but this is illegal.

Yes, but once again, special exception laws had to be passed to create that expectation of privacy in the public sphere.

How is the Internet different?

There aren't any laws creating privacy there yet.

Don't ISPs have common carrier status, and doesn't that preclude them from monitoring your communications?

No, ISPs do NOT have common carrier status- and they can do whatever the hell they want to as far as monitoring your communications are concerned.

And doesn't the government have to play by different rules anyway?

Yes, to a certain extent- but you can't smoke a joint in front of a policeman and expect not to get arrested either.

In the US, our government is bound by the Constitution which precludes them from doing certain things that a company could do.

True, but this isn't one of them, because the Internet wasn't created at the time the Constitution was. Neither were phones or the US Mail service- which is why special laws had to be passed by Congress to create privacy in that portion of the public sphere.

In short, your argument makes no sense It almost seems as if you are being contrary just to be contrary. I can say that black is no different than white, but that won't make it so any more than your claims about our legal and governmental systems make them true.

And claiming common carrier status for ISPs when no such law has been passed is just plain stupid.

Re:What part of

[Marxist Hacker 42]

Sealed- but yes, very much so. A normal e-mail isn't a sealed envelope. A normal e-mail can contain a sealed envelope- that's what PGP is for- but since there aren't any laws protecting virtual sealed envelopes yet, you take your chance that the encryption won't be broken. They'll need a warrent to get you to give up the key though....

Re:What part of

[Nukenbar2]

Actually there is a big difference between the call and the e-mail in the eyes of the law. You have a different privacy interest when you are making a call because it is an active communication and therefore the wiretapping statues and laws come into play. However an e-mail is considered more of a contained communication that is over with, kind of like if you left a message on a voice mail. Then the property interest would be with the person that has the message, not the person that sent it.

Re:What part of

[drinkypoo]

Like it or not, the Internet was built by the Federal Government

I'm not sure what that has to do with anything today - the feds do not run any part of the internet. It's entirely privatized.

Re:What part of

[Marxist Hacker 42]

Sure it's different.

Not really once you realize that they needed to pass a special law for:

By your reasoning, any letter you send is property of the Post Office, therefore they have the right to read it without a warrant.

And without the laws preventing this EXTERNAL to the Constitution, they'd have just such a right.

And any phone call you make is property of the phone company, therefore they have the right to listen in to it without a warrant.

And before the wiretapping laws they had just such a right- such evidence was used in Al Capone's case for instance.

While both of these have certainly been done (and not just by Bush and Friends), there is significant dispute over their legality, even after the outgoing congress passed a special new law to legalize ongoing activity.

Yes, but that's only because of PREVIOUS LAWS making this illegal. ISPs are NOT common carriers, and have no such laws about them yet. I don't disagree that this isn't how it should be, but it is what it is. Write your congress critter to change this.

Re:What part of

[mattmacf]

IANAL, but something about this tells me that a decent lawyer could find something to get this evidence dismissed against both parties due to improper police handling of evidence.

Check out Rakas v. Illinois. Specifically, scroll down to II.A for the real juicy part.

A person who is aggrieved by an illegal search and seizure only through the introduction of damaging evidence secured by a search of a third person's premises or property has not had any of his Fourth Amendment rights infringed. ... And since the exclusionary rule is an attempt to effectuate the guarantees of the Fourth Amendment, ... it is proper to permit only defendants whose Fourth Amendment rights have been violated to benefit from the rule's protections.

For more information, just start clicking on some of the links that Rehnquist cited in defense of his decision. It's pretty much a well held principle that you have no right to complain (i.e. no standing under the exclusionary rule) when SOMEBODY ELSE'S fourth amendment rights have been violated.

Re:What part of

[kyouteki]

When you send a letter through the post office, no copy is made. The actual copy that you send is the actual copy that the recipient gets. With email, it's data copy followed by data copy.

And because of common carrier status, phone companies do not have the right to monitor communications on their lines. There are legal overrides, of course, but most require warrants, the current president notwithstanding.

So, um, both of you are correct.

Re:What part of

[Marxist Hacker 42]

I'm not sure what that has to do with anything today - the feds do not run any part of the internet. It's entirely privatized.

And if you don't think the Justice Department, the Intelligence Community, and the Department of Defense didn't keep some sort of a trapdoor into the major backbones, I've got a covered bridge in Lane County....

Re:What part of

[Fastolfe]

I suspect the parent poster is talking more about possession of the data than a transfer of your copyrights. In addition, ISPs are not considered common carriers, though they may be utilizing common carriers to send and receive your data.

If you have drugs in your car, and you loan your car to a friend, there's no law that says that they can't root around in your things, they have to be discreet about what they find, or that they can't drive up to a police station and let the cops have their way with your stuff. Your friend has lawful possession of your car, because you let them have it.

Your mail provider has lawful possession of your data, because you set up an e-mail account there. Your ISP also has lawful (though usually more brief) possession of your data, because that's the point of contracting for Internet service. You understood that by giving your data to them, they would send it over the Internet to its destination. Your ISP has business arrangements with other ISPs to make that happen. These ISPs must necessarily possess your data for a short period of time in order to perform the services you contracted with your ISP to perform. There is little (IF ANY) law that requires them to keep it confidential. (At least, that is the argument of the State.)

Even if you have some sort of contract with the friend (ISP) that says they do things to your car (data) that you don't want, there's no law that requires them to obey it. Worst case you take them to court for damages from their breach of contract. This will have no effect on the admissibility of the evidence.

Re:What part of

[Marxist Hacker 42]

To be specific from that link:

Internet Service Providers have argued against being classified as a "common carrier" and, so far, have managed to do so. The argument of ISPs against common carrier classification has largely conflated "telecommunications carriers" with "common carriers," assuming that if they were labeled as "common carriers," they would be regulated under Title II of the Communications Act by the FCC. This is incorrect; as noted above, you can be a common carrier without being a telecommunications carrier. The FCC proceeding that established that Internet networks are not telecommunications carriers is the Computer Inquiries. A later FCC report, IN RE FEDERAL-STATE JOINT BOARD ON UNIVERSAL SERVICE, Report to Congress, 13 FCC Rcd. 11501 (1998), reviewed this policy (this report was not an order and did not have the effect of regulatory law - it is however, an excellent capture of FCC policy at that time).

The policy of the FCC has evolved. Traditionally, an Internet network information service would acquire its telecommunications needs from a telecommunications carrier. It was an Internet network layered on top of a telecommunications network. Pursuant to recent FCC decisions, however, Internet DSL and Internet Cable services are now considered combined as one "information service." There is no telecommunications carrier service underneath for other ISPs to use. This has resulted in a transformation of the ISP market. Previously, thousands of ISPs had access to the telephone network. Now, with no broadband telecommunications carrier service available, there are generally only two Internet broadband providers in a residential market: the cable Internet provider and the DSL Internet provider. Cable ISPs and the DSL ISPs have market power and have both the incentive and opportunity to discriminate with regard to content and applications used over their networks. The AT&T CEO has declared that Google should no longer get a free ride, and should pay AT&T in order to be delivered to AT&T's customers. This is a dramatic departure from 100 years of telecommunications carrier history.[neutrality disputed] This has led to the argument in favor of network neutrality and a return to the common carrier principles that networks should not be able to discriminate with regard to content nor be liable for content.

Re:What part of

[Anonymous Coward]

To add to your point. Letters in seeled envelopes {sp} are protected postcards are not. If I send a postcard I can't assume that only the addressed recipient will turn it over and read it. But, I can assume the the seeled envelope will arrive seeled.

Although many folks like to think of email as the electronic equivalent of the sealed envelope snail mail, it really is not.

Email is exactly the equivalent of a postcard in the snail mail system. Anyone, anywhere, along it's path from sender to receiver, can "turn it over" and read what is written on it.

If someone really wants the sealed envelope method of mail, they need to use gpg to encrypt the email body so that only the recipient can read it.

Re:What part of

[Anonymous Coward]

If I have a VoIP phone, my calls go out over the internet. Does that mean I am not entitled to any privacy?

Re:What part of

[n00854180t]

Your argument is the equivalent of saying that because a letter is in a public area, anyone should be able to open and read it. Remember, accessing the data from disk into human readable form is pretty much 100% analogous to an envelope. Encryption of email is far more analogous to writing your snail mail letter in code, than it is to having an envelope. By your logic (and the Feds'), if someone other than the person that sent a snail mail letter is HOLDING it, than it should be 100% legal for them to open it. This isn't the case, it also shouldn't be for email. It takes a disk access to read an email, just as it takes opening an envelope to read a letter.

Re:What part of

[cHiphead]

Well then, I would like to know where my public domain internet connection on my house.

The internet itself is a collection of primarily PRIVATE systems running data over public right of way lines, the data in question is stored on PRIVATE servers, they aren't talking about capturing the mail from the trucks driving down the tubes (from the data stream on the wire) directly, they are talking about copying it from private servers.

Re:What part of

[Jaysyn]

Rule #376: Never let them tie you up on the first date.

Re:What part of

[drinkypoo]

I'm not sure what that has to do with anything today - the feds do not run any part of the internet. It's entirely privatized.

And if you don't think the Justice Department, the Intelligence Community, and the Department of Defense didn't keep some sort of a trapdoor into the major backbones, I've got a covered bridge in Lane County....

That is entirely irrelevant. We are not discussing whether or not they have the ability to read your email, but whether they have the right to read your email.

Re:What part of

[Fastolfe]

The whole ownership/lease thing clouds up a number of these analogies. The real issue (IMO) is possession.

If you loan your car to a friend, and your car has a bunch of drugs and child porn in it, there's no law that says your friend can't root around your stuff, call the cops, and consent to a search of your car. Your friend has lawful possession of your car and is legally entitled to do all of these things.

When you contract for services with an ISP or an e-mail provider, you are giving them possession of your data. There's no law that says they can't turn it over to the cops. Even if it's in the contract between you and your ISP, breach of contract is a civil dispute that has nothing to do with the admissibility of the evidence.

Re:What part of

[solitas]

They'll need a warrent to get you to give up the key though....

It is beyond reasonable expectation to expect me to REMEMBER a 4096-bit PGP key.

-or-

"That USB drive was lost/stolen/destroyed/etc..

Choose one.

Re:What part of

[FreakWent]

What about postal mail? What about a conversation between two people on someone else's private property?

Besides, doesn't .gov get enough of their own spam to allow prosecution?

Re:What part of

[rajafarian]

In the US, our government is bound by the Constitution which precludes them from doing certain things that a company could do.

True, but this isn't one of them, because the Internet wasn't created at the time the Constitution was.

Do you know what I see as being a BIG problem? The way the Constitution was originally created was that the federal government couldn't do anything unless it was expressly told so but now it effing thinks it can do anything it wants unless it's expressly told it can't.

That pisses me OFF!!!

Re:What part of

[Fastolfe]

IANAL, but I don't think a contract would give you an expectation of privacy or have any influence on whether or not they can legally turn your information over to the feds (or anyone, really). If they turn your data over to law enforcement, even if your contract prevents it, they're just liable for the damages coming out of that breach of contract, and "damages" of the form of "it got me convicted of a crime" aren't normally things you can sue for.

Re:What part of

[n00854180t]

My point is that email communications should technically be protected for the very reason that anyone making the disk access to read the data of an email is basically committing the same crime as someone opening a letter. The ISP or whoever may *own* the data to the message, but technically only the sender and recipient should have ANY right to access that data (especially before transmission is complete).

Re:What part of

[Marxist Hacker 42]

That is entirely irrelevant. We are not discussing whether or not they have the ability to read your email, but whether they have the right to read your email.

Since ISPs are not common carriers, there's nothing preventing them to do anything they are capable of doing.

Re:What part of

[Marxist Hacker 42]

My point is that email communications should technically be protected for the very reason that anyone making the disk access to read the data of an email is basically committing the same crime as someone opening a letter. The ISP or whoever may *own* the data to the message, but technically only the sender and recipient should have ANY right to access that data (especially before transmission is complete).

Should and is are two different things though- and right now, ISPs are not common carriers and aren't prevented to by law.

Re:What part of

[Marxist Hacker 42]

VOIP providers are ISPs, and do not have common carrier status. Therefore, no, you don't have any expectation of privacy using a VOIP phone or a cell phone or a ham radio or anything else that is broadcast and not specifically covered by common carrier laws.

Re:What part of

[drooling-dog]

Like it or not, the Internet was built by the Federal Government- and it very much is the public domain.

You could say much the same thing about the Post Office. Letters you send are not only handled and delivered by the Federal Gov't, they actually spend a fair amount of time in government buildings. What, then, is the difference?

Re:What part of

[Marxist Hacker 42]

Do you know what I see as being a BIG problem? The way the Constitution was originally created was that the federal government couldn't do anything unless it was expressly told so but now it effing thinks it can do anything it wants unless it's expressly told it can't.

Yep, I completely agree- but what are you going to do about it? They've got the nukes.

That pisses me OFF!!!

As well it should- but guess what- the prisons are full of people pissed off that the government took away their freedom. Write your congress critter and try to get the law changed like we did for phone companies and the US Mail.

Re:What part of

[multisync]

they had better have a search warrant for it.

Correct me if I'm wrong, but doesn't your Patriot Act give your government the authority to demand any information a company has on you, as well as make it a crime for the company to notify you that they have done so?

Re:What part of

[Impy the Impiuos Imp]

The government, as is it's way, dumped huge amounts of money to force into existence a handful of long distance networks, short ones (inside a building, building-to-nearby-building) already existing anyway.

It toddered along, largely useless except for some eggheads, much like the space program, for a couple of decades. Then computers became powerful enough to store, or even just show porn gifs, so people wanted to swap 'em around, and people started bitching not to post pictures in Usenet discussion newsgroups but they were shouted down like the losers they are and private investors found something to invest in and dwarfed the government spending, no not on the original trivial Internet, I mean all government spending for several years.

And since we're all good little socialists, well-trained, we believe honestly that private industry would not be here at this point if it weren't for the government, just like there won't be private rocketry or private airplanes or private piston engines or private steam engines.

Re:What part of

[HTH NE1]

What happened to the protections under the Electronic Communications Privacy Act of 1986? The ECPA is supposed to prohibit unlawful access and certain disclosures of electronic communication contents and prevents government entities from requiring disclosure of electronic communications from a provider without proper procedure.

Did it suddenly get repealed or gutted by amendments?

Re:What part of

[Anonymous Coward]

So, the internet is like a truck you can dump things on?

Re:What part of

[Marxist Hacker 42]

You could say much the same thing about the Post Office. Letters you send are not only handled and delivered by the Federal Gov't, they actually spend a fair amount of time in government buildings. What, then, is the difference?

Special laws that make the US Post Office a common carrier. I suggest you write your congress critter to get the same thing for ISPs.

Re:What part of

[drinkypoo]

That is entirely irrelevant. We are not discussing whether or not they have the ability to read your email, but whether they have the right to read your email.

Since ISPs are not common carriers, there's nothing preventing them to do anything they are capable of doing.

Uh, it's pretty irrelevant whether or not ISPs are common carriers, too; whether they are or not, there's nothing preventing them to do anything they are capable of doing.

On the other hand, if the law explicitly said that they needed a warrant to read your email regardless of where the email is to be found, then they wouldn't be able to use the evidence gathered from it in court. They would have to do what the cops normally do when they wiretap you illegally - use the tap to find out who to go after, then gather evidence through legal means. They could still thus game the system - but at least it would take longer.

Re:What part of

[Kagura]

No Reasonable Expectation of Privacy in the Public Domain don't you understand?
Like it or not, the Internet was built by the Federal Government- and it very much is the public domain.

Like it or not, free speech was established by the Federal Government- (sic) and it very much is the public domain. Watch what you say in public and private, because you wouldn't even have that liberty if it weren't for the Federal Government.

Re:What part of

[dogod]

They own that copy- which you as the copyright owner freely gave them by ASKING THEIR E-MAIL SERVER TO MAKE A COPY!

so if i buy a cd and my only cd player is in my computer, then the copy the gets put into memory is mine?

or closer to your point. how about i own part of the internet backbone and the riaa transfers music across to it, does that mean i have rights to do what i want. all because they "asked" me to transfer a copy of it?

not that i'm right, just some random thoughts.

Re:What part of

[Skjellifetti]

And before the wiretapping laws they had just such a right- such evidence was used in Al Capone's case for instance.

Why aren't emails considered papers and thus subject to the 4th Amendment? Who defines papers, effects, etc. Congress? The Courts? Or We The People?

Amendment IV -- The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

And whatever became of

Amendment IX -- The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Has it ever been used for anything useful or is it just a cute decoration hanging on the Bill of Rights?

Re:What part of

[dedalus2000]

I hear there's debate as to whether ass-prints should be admissible as evidence so the ARS system and the controversial plan to collect citizen ass-prints may be so much hot air... so it's unlikely the courts would bare it...

Re:What part of

[Vellmont]

Any message sent across it unencrypted is just as much fair game for prosecutuion as taking a picture of you mooning other cars on the freeway.

And exactly how is the transmission medium of the internet any different in terms of expectations of privacy than my phone line? Yes, I DO understand how the internet works, but that doesn't mean that it's legal for ISPs or internet providers to tap into my communications. A data line coming into my house, and all the data lines connecting the internet are inherently private forms of communication. It's no different than the telephone network where voice traffic can cross multiple providers on its way to the destination. It's nothing like going outside onto public land and mooning cars.

Re:What part of

[misleb]

To add to your point. Letters in seeled envelopes {sp} are protected postcards are not. If I send a postcard I can't assume that only the addressed recipient will turn it over and read it. But, I can assume the the seeled envelope will arrive seeled.

You cannot make this assumption. I know plenty of people who've recieved letters and packages that were opened sometime during delivery. Presumably they were under surveillance of some sort. It isn't just paranoia. There are reasons why these people might be watched. I don't know if it is legal, but I know it happens.

-matthew

Re:What part of

[msobkow]

Everyone knows DARPA kicked it off, the telcos carried it forward, and other carriers joined in. Publicly funded research and development like DARPA are usually shared around the world, just like ISO, ANSI, or POSIX standards. Just because a standard was funded by one government doesn't mean that they didn't intend to share.

Re:What part of

[Marxist Hacker 42]

Section 2(a)(ii)(B)(b)

(b) It shall not be unlawful under this chapter for an officer, employee, or agent of the Federal Communications Commission, in the normal course of his employment and in discharge of the monitoring responsibilities exercised by the Commission in the enforcement of chapter 5 of title 47 of the United States Code, to intercept a wire or electronic communication, or oral communication transmitted by radio, or to disclose or use the information thereby obtained.

Re:What part of

[KDR_11k]

"Well, that sucks. Guess we have to charge you with destruction of evidence and assume it was incriminating".

Re:What part of

[Marxist Hacker 42]

so if i buy a cd and my only cd player is in my computer, then the copy the gets put into memory is mine?

Yes, under fair use- plus the fact that the memory is in your possession- unlike:

or closer to your point. how about i own part of the internet backbone and the riaa transfers music across to it, does that mean i have rights to do what i want. all because they "asked" me to transfer a copy of it?

Now this is more interesting. As long as the RIAA was doing it- and it had no other restrictions, such as DRM code- they've given you a copy of it, and since you're not a common carrier, you'd have to look to your contract with the RIAA for guidance. If you have no contract with the RIAA, then they've just screwed their own copyright.

not that i'm right, just some random thoughts.

Interesting thought all the same!

Re:What part of

[Beryllium Sphere(tm)]

>wasn't created at the time the Constitution was. Neither were phones or the US Mail service

1775, first Postmaster General Benjamin Franklin.
The Constitutional Convention was 1787.

Re:What part of

[Thraxen]

I'd disagree. I think the laws simply lag behind the technology and something needs to be done. I really fail to see how communication across the internet differs from phone communication (which is protected). You sound a lot like you work for the government :/

Re:What part of

[Marxist Hacker 42]

Why aren't emails considered papers and thus subject to the 4th Amendment? Who defines papers, effects, etc. Congress? The Courts? Or We The People?

A combination of Congress and the Courts. Certainly not "We the People", who signed our rights away to the corporations in 1876.

Has it ever been used for anything useful or is it just a cute decoration hanging on the Bill of Rights?

The entire bill of rights became decoration some time ago now- long before you and I were born. Oh, they trot it out from time to time- but you've got to ask the Supreme Court what it means and Congress to pass laws to try to change what it means.

Re:What part of

[Marxist Hacker 42]

I completely agree that the laws have dragged behind, and that something needs to be done. The correct way to get new laws passed is Congress, not the courts.

Re:What part of

[nixkuroi]

phone privacy is to email privacy as marriage is to civil union.

Re:What part of

[speculatrix]

the Internet was built by the Federal Government

I'll feed this troll...

only a tiny portion of the current internet is the same entity as created by ARPA, and saying the Feds thus have free passage and rights to the net is like saying that the British still own the USA because we colonised it. As time goes by the strength of the internet at being dispersed means that the portion of the net which can be controlled by the US gov't is diminishing - regional internet exchanges throughout the world mean that less and less traffic touches the US at all unless it is for/from the USA.

when the WTC and other buildings were badly damaged in New York on 9-11, there was a lot of internet disruption, but things generally held up and got re-routed. This and other disasters have taught telcos and ISPs the importance of geographic dispersal and not just local resilience (i.e. cable & power diversity, UPS and generators, fire suppression).

Re:What part of

[MrLint]

Indeed, and this interpretation also has another consequence, if you have no expectation of privacy for your email on another person's computer; then all of those bogus warning about reading/distrubiting emails that you might have gotten in error totally have no force to them (as if they ever did)

Re:What part of

[Marxist Hacker 42]

And exactly how is the transmission medium of the internet any different in terms of expectations of privacy than my phone line?

Extra laws have been passed protecting your phone line. The same laws still need to be passed to protect the Internet. Write your congress critter!

Re:What part of

[Korin43]

Even more to the point, if you send an email to someone else, you can't reasonably expect them not to use it as evidence against you.

Re:What part of

[awehttam]

"Other people's servers" != "Public Domain". Those servers are private property, containing (theoritically anyway) bits of your own private "property".

Now talking about transit in between systems, maybe.

Re:What part of

[bigpat]

Not by the Supreme Court, who ruled that you have NO reasonable expectation of privacy in the public sphere.

Um what? Your possessions are still protected by privacy rights. Possessions such as your bags or your vehicles cannot be searched without a warrant or your permission. But actual possession is the key here as in a bag left in a public place could be searched without a warrant, but a bag that you carry or keep near yourself so as to still be exercising control in a public place cannot.

Re:What part of

[ke4qqq]

Ummm actually they can't use that against you, it's called 'Fruit of the Poisonous Tree'

Re:What part of

[dgatwood]

Indeed an interesting comparison can be drawn between ISPs giving up email and a search of, for example, a private mailbox at a Mailboxes, Etc. store.

Thompson v. Anderson and Mail Boxes Etc., Inc.

Basically, it held that, while the property could be seized, it could not be used as incriminating evidence in court. The guy still got convicted on other evidence, but it does certainly suggest that the precedent is in favor of searching email on an ISP being inadmissible, albeit not unreasonable search nor unreasonable seizure. It -might- still be admissible as "reasonable cause" for getting authorization for a search warrant, however.

Bottom line: if you're a criminal, you had better use IMAP....

Re:What part of

[Alascom]

Comparing phone and email is apples and oranges.
The phone company does not keep copies of all your voice calls. Since email is a service and messages reside on the 3rd party business computer, the 3rd party can grant the right to the government to search THEIR person, privacy and effects. This is not unlike a friend keeping his 'stash' in your apartment and the policy asking permission to search your apartment. If you agree, your friend cannot claim unreasonable search.

This may very well apply to voice messages stored on a phone carrier servers. I am not aware of this having been tested in court however.

Re:What part of

[c6gunner]

Do you know what I see as being a BIG problem? The way the Constitution was originally created was that the federal government couldn't do anything unless it was expressly told so but now it effing thinks it can do anything it wants unless it's expressly told it can't.

And whose fault is that? The whole problem is that people only give a shit about federal politics. The constitution placed so many limits on the federal government precisely because it was supposed to be little more than a forum where state representatives could talk, argue, debate, and otherwise air their grievances and come to agreements with each other. Think of it as a mini-UN - mostly powerless, but a good forum for debate. If people had stayed focused on their local politics and kept electing reasonable politicians at the state level, you wouldn't have these problems. The kind of nonsense we saw during Katrina, where everyone took one giant collective shit on G.W. Bush while letting the Mayor and Governor off scott free, is exactly what's causing the problems you're talking about.

Re:What part of

[Anonymous Coward]

Why do you think postcards being sent through the U.S. mail are not protected by the Fourth Amendment? It seems to me the only time you might have your postcard scrutinized is if in the normal course of mail sorting and delivery the non-postal service content on a postcard is inadvertently read and that leads the postal employee to suspect the content is evidence of lawbreaking, then the postcard might be forwarded to other government officials for further screening. Otherwise, I think the Fourth should protect your postcard very well. The government would certainly need a warrant to tell the postal employee to not behave as he normally would and to read every postcard a specific person sent to look for lawbreaking evidence. Similarly, the government would need a warrant to have all of your postcards diverted away from the normal course of sorting and delivery to be read by some non-postal government employee. You do have an expectation of privacy with your U.S. mail, that it won't be handled by the government in a manner specifically intended to scrutinize the communication you are making to the intended recipient. An unethical and unscrupulous government employee (or employees) might try to skirt the Fourth Amendment by reasoning you would never know they had singled out your postcards to be read even though they did not have a warrant to do so. But that is not what happened in this email case. The government very specifically went and sought to read this person's written communications without first getting the Fourth Amendment's requisite warrant.

I don't like spammers anymore than you do (I guess, unless you are one), but saying the government is free to intercept communications for specific scrutiny without a warrant is very much the madness of all of the King Georges throughout history. Part of the government's duty is to uphold the Fourth Amendment, not ignore it for convenience.

Re:What part of

[Anonymous Coward]

What if the email is NOT stored on the ISP Server? Is it still fair game for the Gov? It seems that this comes down to the fact that if you leave the email on the server, they can argue that you obviously did not care if anyone looked at your mail because you left it in a public place(the server). If you download the email, and erase it from the server, don't they have to have a search warrant? Is this what the issue is? If so, it seems to argue against using IMAP email servers instead of POP3. I think both of them should be protected, but I can see them making this argument.

Re:What part of

[DM9290]

"The police come busting down your door without a warrant and find said evidence. In this case, your right to privacy has been violated and the evidence found cannot be used against you. However, this evidence can still be used against me. Why? Because I had no expectation of privacy IN YOUR HOUSE."

Perhaps if you hid the evidence in my house without telling me. But if I promised to safeguard the evidence for you, then why would your expecation of privacy be unreasonable?

If I have promised you a certain degree of privacy then you have a reasonable expectation of that amount of privacy as long as my promise is reasonable and your belief in my ability and intention to uphold it is reasonable.

"As far as the law is concerned, the evidence found against me is as legitimate as if you had turned it in yourself. "

If that was the case the evidence would be usable against me as well.

If it was unreasonable for the PUBLIC to be in there searching. (as it would if it was a private home and they had no warrant), then it was reasonable for you to expect that this would NOT happen. And your expectation of privacy in regards to that search is REASONABLE.

"Back to the email thing, the minute you send an email to an outside party, you voluntarily concede your expectation of privacy as YOU were the one who freely divulged whatever information was in that email."

Yes. but only to that party. Not to the world.

If you tell me something in confidence and I publish it to the world.. you can actually sue me for damages. it all depends on the degree of secrecy you were promised. There is no general waver of privacy when dealing with third parties like you seem to be implying.

You have no right to promise people privacy and then violate their privacy. Likewise the public has no right to simply seize secrets about third parties from your person without a warrant.

Re:What part of

[Artifakt]

IANAL, but something about this tells me that a decent lawyer could find something to get this evidence dismissed against both parties due to improper police handling of evidence.

IANALE (either), but it's called 'fruit of the poisonous tree'. Once evidence is obtained or handled unlawfuly, it stays unlawful.
        For the case above, how can the grand jury charge two people with conspiracy to commit if one of them can't be charged at all? It takes at least two to make a conspiracy, which would be the crime the police think has in fact happened. The police can't lawfully describe what they think happened without naming the friend can they? So, they have to charge you with a crime other than the one they think happened.
      They can't show that the evidence they have was always lawfully in their possesion and couldn't have been tampered with, because it was initially unlawfully obtained. if they leave your friend out, they have to purjure themselves on the stand. "Yes ladies and gentlemen, the defendant held a ladder for himself as he climbed into the second story window. Then he lowered the TV set to himself, whereupon he caught it. Then he stored it on his property, whee we found it.". They can't even legally call your friend a person or persons unknown, because a. they do know, and b. you know, and as defendant have wide leeway in introducing the claim that it was in fact the person they can't charge even if they don't want to bring that up.
      What happens if you call your friend as a witness to say you were somewhere else when the crime happened? Do the cops prove he's lieing by evidence they are not allowed to use?

Re:What part of

[Matt Edd]

+0 WTF?
Are you saying that e-mail is gay?

Re:What part of

[westlake]

how can the grand jury charge two people with conspiracy to commit if one of them can't be charged at all?

do the phrases "plea bargain" or "unindicted co-conspirator" ring a bell?

there may be many reasons why other members of the ring can't or won't be prosecuted, but that doesn't give you a get out of jail free card.

Re:What part of

[2short]

"you don't have any expectation of privacy using a VOIP phone"

Of course I do. I expect that a conversation I'm having over the phone is private, regardless of what transmission methods that phone may use. Notably, I don't even always know if I'm using a VOIP phone or a regular phone, so that can't very well impact my expectations.

The whole reason the phrase "expectation of privacy" gets bandied about in these conversations is that the standard is a reasonable persons expectations.

Re:What part of

[Stanislav_J]

Damn! Should the Fed have the right to open your snail mail, too?

They did with US Mail before they passed a bunch of laws making it illegal.

Actually, that only applies to 1st class mail, and even then it can be opened or monitored with a proper warrant. Every other class of USPS mail, however, is subject to opening and inspection at the whim of any Postal Inspector or other law-enforcement agent, and always has been.

Re:What part of

[duguk]

That would be illegal in the UK.

You don't really have a choice here!

DugUK

Re:What part of

[iluvcapra]

I forget the date, it might have been in '05 even, but when they held the first Senate hearings after the Terrorist Surveillance Program (also known as the NSA Warrantless Wiretap program), Charles Shumer asked Alberto Gonzalez, point blank:

Can you tell me right now that you are not opening US First Class mail without a warrant?

Or words to that effect. Alberto's response was pointed without meaning to be:

Well... I won't address all of the outrageous theories that are floating around in the media right now.

If anyone knows where one can find the exchange I'm sure we'd all appreciate it.

Re:What part of

[indil]

The issue here isn't whether the government can read your email on another computer; it already can by using warrants. The issue is whether the government -- or anyone -- can read your email by a court order, which is easier to obtain than a warrant. The government is arguing that a court order or subpoena requirement is sufficient to protect the privacy of the public.

From the article:

During the investigation, agents obtained court orders allowing them to collect thousands of Warshak's e-mails from Yahoo and another e-mail provider. A court order requires a lesser burden of proof than a search warrant.

Warshak sued in federal court, claiming that the search of his e-mail violated the Fourth Amendment of the Constitution, which protects citizens against unreasonable searches and seizures. ...

In July, a U.S. district judge agreed, ruling that e-mails stored on the server of a commercial Internet service provider can't be read without a search warrant. ...

The government appealed the decision to the U.S. Court of Appeals for the Sixth Circuit, which has yet to rule on the case. E-mail users are protected from overzealous investigators, the government argues, because a search of stored e-mail still requires a subpoena from a prosecutor or a court order from a judge.

What this comes down to is the difference between a court order and a warrant and which one best fits the nature of electronic messages and the method by which they're delivered.

There is no privacy contract, social or otherwise, between the sender of an email and the computers that forward it to its recipient. Each forwarder may belong to different enterprises, each with its own usage and security policies, which may or may not include archiving your email for future scrutiny. If your email is forwarded by a computer that helps the government or publishes your email then you're hosed. Otherwise, I would argue that your email, stored on a physical medium on private property, should require a search warrant, much like retrieving a written letter from your office or home would.

Re:What part of

[Anonymous Coward]

I guess they can tap your phones too then, right? Those go over the internet. How about bank statements, all your financials surely go over the internet sooner or later. How about IM conversations? Monitoring what you read online, and which blogs you post to, as well as what you post, say on the phone, write in an email, or send in a physical letter. Letters are after all in the custody of the post office, right? How about your apartment? If you don't own your own home, then surely they can search that too, as it isn't really yours.

So, basically you have an expectation to privacy if you live in a home that you (and you alone) own, and you never interact with anyone except face to face, you pay for everything in cash, and don't buy any sort of utilities, insurance, or have a bank account, and you know for sure that the people you do talk to (and near) face to face are not government agents or informants. Did I just describe the Soviet Union, we did win the cold war, right? What was the point of that whole exercise if we have our own KGB?

Re:What part of

[Scarletdown]

so the ARS system and the controversial plan to collect citizen ass-prints may be so much hot air...

I don't think that's merely hot air.

Re:What part of

[fingusernames]

I believe you were thinking of the government formed by the Articles of Confederation. The Constitution of the United States was written to expand the power of the central government, and created a system of shared sovereignty, where the federal government is sovereign in its realm, and the states in theirs. The granting of the power of unlimited taxation to the federal government is the root of all this. Power follows money. The federal Congress was granted the sole power to coin/print money, to maintain a standing army and navy, to regulate commerce AMONG the states and foreign nations, to negotiate with foreign powers, and so on. It was quite obviously intended to have full sovereign powers over most activities that did not occur wholly within the borders of a single states.

One of the many issues, I believe, that led to our current sorry state of affairs, where the federal government believes that it holds all sovereign powers, is the Bill of Rights. The Constitution is largely a positive document when it comes to federal power: it specifies what the federal government CAN do, not what it CANNOT do. The Bill of Rights however is a negative document, in that it states what the federal government must not do. The 9th and 10th amendments were intended to reinforce the positive nature of the Constitution, but they failed in the test of time. If we had a purely positive document creating federal powers, there wouldn't be the disconnect, and there wouldn't be clauses in the Bill of Rights that courts could use to justify expansive federal power. That was precisely a fear of some opponents of the Bill of Rights. Then the Civil War was largely a test of whether the southern agricultural Jeffersonian views in drafting the constitution or the northern industrial Hamiltonian views were supreme. The north won. The 14th amendment was passed. The Hamiltonian view of a strong central government providing a uniform nation took hold. In the 20th century, it came to a head.

In '37, the Supreme Court was nearly eviscerated for standing up to to the President and Congress and ruling against vast expansions of federal power that we today take for granted. It wasn't until the 90s that the Rehnquist court began to once again stand up to federal power, asserting that there are indeed constitutional limitations on the scope of Congressional authority. These arguments are often incorrectly labeled as "state's rights." The Court continues to whittle away at the powers seized by the Congress, but whittle it will only do. The negative connotation to the Constitution provided by the Bill of Rights and a century of jurisprudence will never be reversed, and the presumption of legislative correctness will long stand.

Your observation re: Bush and Katrina is precisely the symptom you say it is. The people expect to have one capital G Government (THE Government) to take care of all problems. They don't see the advantage of 51 sovereign governments. Leftists don't like it because it requires them to travel to 51 legislative bodies to get their agendas enacted. Business and its right-wing allies don't like it for the same reason. See the recent FCC rulemaking. I find it SO amusing that the left derides attempts to devolve legislative authority back to the states away from the federal government when it impacts their agenda, yet they decry the FCC rule as robbing local governments of power. And the right doth protest in the opposite direction. Oh the irony.

Larry

Re:What part of

[firemangreg]

What about pleading the Fifth?

Re:What part of

[delong]

Why aren't emails considered papers and thus subject to the 4th Amendment?

Irrelevant. The Fourth Amendment is only implicated if the search violates a reasonable expectation of privacy. You have no reasonable expectation of privacy in emails on a third party computer for the same reason you have no reasonable expectation of privacy in conversations with third parties. You do not have a reasonable expectation of privacy when a third party can voluntarily hand over your emails, allow police to monitor the conversation, or tell the police about the conversation. That's why snitches wearing wires, like on TV, does not implicate the Fourth Amendment.

Re:What part of

[ady1]

Why would someone tattoo their name where noone will ever see it, given that he is a geek

Re:What part of

[number11]

Once you send it out, that copy of the data belongs to the ISP, not you.

Ah, but is that what a reasonable person would believe? Let's ask 10 email users.
Q. When you send out an email, do the contents belong to your ISP?
Bet all 10 answer, "what are you, nuts?"

When I got an FCC radio license, one of the things I was supposed to know was that if a communication was not sent to me or parties that I was an agent for, I was not allowed to disclose it. The law didn't make an exception for disclosure to government employees. And that was with a technology that everybody understood could be overheard by anyone who was listening. Should email be different?

Re:What part of

[networkBoy]

As so aptly demonstrated by Ollie North, the 5th is not even required: "I have no reccolection of those events sir". That should work in the UK to some extent as well.
"Your honour, I had it written down somewhere as I always am forgetting stuff, but I appear to have forgotten where I put that particular post-it."
They really can't prove you did not forget, just have to be a good actor.
-nB

Re:What part of

[pedestrian crossing]

Not by the Supreme Court, who ruled that you have NO reasonable expectation of privacy in the public sphere.

Um what? Your possessions are still protected by privacy rights. Possessions such as your bags or your vehicles cannot be searched without a warrant or your permission. But actual possession is the key here as in a bag left in a public place could be searched without a warrant, but a bag that you carry or keep near yourself so as to still be exercising control in a public place cannot.

Actually, I don't think so. For instance, your bags are subject to search without a warrant or probable cause if you are on the New York City public transit system...

Re:What part of

[Anonymous Coward]

Negative! This has nothing to do with "public property" or the fact that the Federal government funded the development of what has now become the Internet. Data traveling across the wires is not simply "open for reading", warrants and/or search and seizure authorization are required to read data contained within an information system (A network or a computer).

What this does relate to is the search/seizure authorization rights of the property owner. The way this is currently handled is that the information contained on an information system is owned by the owner of the information system.

For example:
If you are using POP3 to download your mail, before you download your mail, that mail is subject to search and seizure under the authorization of the person/company who owns the email server that you use. Once you have downloaded the email, you are the owner of that data and you would have to give authorization for search and seizure. Otherwise a warrant would be required.

If you are using web based email, your email is always on the server. If that server is owned by anyone other than you, "they" can permit search and seizure.

Personally I disagree with this precendent that has been set, but that's the way it works.

v/r,

A Random Cyber Crime Examiner

Re:What part of

[Joebert]

The same reason mom writes your name in your underwear.

Re:What part of

[Puppet Master]

That makes no sense, however. I don't own the phone network once it leaves my house (more precisely, the NID), but I have a right to privacy as defined by quite a bit of legislation.

Err... read The Patriot Act lately? The government *IS* allowed to wire tap your phone, in search of terrorists.

Since phone lines carry email, then they can read your email just the same.

You have the freedom of speech! *

* Some restrictions apply - see Patriot Act for details

Re:What part of

[voice_of_all_reason]

if you get pulled over by the police, they don't need a warrant to search your car because they've got the goddamned guns

Fixed.

Re:What part of

[BVis]

The whole reason the phrase "expectation of privacy" gets bandied about in these conversations is that the standard is a reasonable persons expectations.

Which renders the definition meaningless. "Your Honor, a reasonable person would expect the government to attempt to intercept communications over the Internet that could be terrorist communications, or discussions of other illegal activity, like child pornography or drug trafficking. The defendant's attempt to go outside the normal phone system clearly indicates that they do not wish to be surveiled, therefore it is reasonable to suspect they are engaged in illegal activity."

Not to mention the lack of common carrier status, the fact that your packets are being sent through any number of corporations' equipment (therefore giving them the right to keep records as they see fit, for "quality assurance"), and common sense (you have no expectation of privacy on the Internet, period.)

If you have to do VoIP, use a vendor that encrypts the content (e.g. Skype, and NOT Vonage.)

Re:What part of

[Aram Fingal]

As I understand it (but I'm not a lawyer), the 5th will cover you just fine in a criminal case but not so much so in a civil case. You may have heard of situations where a court has ordered someone to give up their key (or password) and hold them in contempt if they don't. What I've heard is that they usually do whatever they can to prevent either party in a civil suit from taking the 5th. That often means granting immunity from prosecution but that's still not good if the information you're trying to protect is about something more embarrassing than illegal.

Re:What part of

[Lotharus]

Tattoo isn't a proper noun. Stop using capitalization Improperly.

Why no, no I don't have anything of value to contribute to this discussion.

Re:What part of

[Joebert]

But Tattoo is an object & the main topic of my statement, it's important enough to capitalize.

Re:What part of

[Marxist Hacker 42]

So, basically you have an expectation to privacy if you live in a home that you (and you alone) own, and you never interact with anyone except face to face, you pay for everything in cash, and don't buy any sort of utilities, insurance, or have a bank account, and you know for sure that the people you do talk to (and near) face to face are not government agents or informants. Did I just describe the Soviet Union, we did win the cold war, right? What was the point of that whole exercise if we have our own KGB?

We didn't win the cold war- we just lost it slower than the other guy.

Re:What part of

[Marxist Hacker 42]

When I got an FCC radio license, one of the things I was supposed to know was that if a communication was not sent to me or parties that I was an agent for, I was not allowed to disclose it. The law didn't make an exception for disclosure to government employees. And that was with a technology that everybody understood could be overheard by anyone who was listening. Should email be different?

According to the ISPs it should be- in fact, Google's business model for G-Mail practically depends upon it. Don't like it? Do what I did- write your congress critter to get ISPs regulated as common carriers under the FCC (right now they're not).

Re:What part of

[phlinn]

IANAL, but this is a simple explanation of why the fourth amendment wouldn't automatically apply.

Emails aren't considered personal papers for the simple reason that they've been voluntarily handed over to someone else. In a technical sense, if you send a message via UPS, they have ownership of that package until it's delivered, and could give consent to search absent specific laws or contract agreements to the contrary. I believe wiretaps only required permission from AT&T, not from the homeowners because the company owned the wires, not the users.

It may related to the reason they can use evidence cleanly in your car without a warrant to search, or an overheard conversation in a public place.

Re:What part of

[2short]

"Which renders the definition meaningless"

I (and the Supreme Court) disagree. A reasonable persons expectation is in fact the standard for privacy rights. I cannot really parse your example, except that it seems to be pointing out that a lawyer could potentially argue something some unreasonable way. Lawyers can of course argue whatever they like; Judges don't have to go along just because a lawyer can say it.

I have a reasonable expectation that my phone calls are not being listened in on, so the government needs a warrant if they want to do it. I sometimes visit an office where the phones are a hybrid system that uses both VOIP and regular land lines. When I pick up the phone there, I don't know which I'm getting, so it's impossible for that to impact my expectation of privacy.

While you or I may think it's ridiculous, most people think their un-encrypted email is private. The whole discussion at hand is whether data being stored on some ISPs machine renders it non-private. Since most everyone has no idea how the technical details of email work, I don't see how those technical details can impact their expectations.

Re:What part of

[hoppo]

These are two completely different animals.

Legislation protecting telephone communications is very specifically aimed at the signals being broadcast back and forth between (or among) the participants.

An e-mail message is something that is stored and persisted, unlike a phone conversation. You should have no reason to believe an e-mail you send out is implicitly covered by some law governing another form of communication. It would be no different if you hand-wrote a letter incriminating yourself in some matter of wrongdoing, and dropped it off in public somewhere. In that case, you have no expectation of that letter being protected by search and seizure laws. Nor would you with an e-mail message that is sitting on someone else's servers.

Re:What part of

[BVis]

While you or I may think it's ridiculous, most people think their un-encrypted email is private. The whole discussion at hand is whether data being stored on some ISPs machine renders it non-private. Since most everyone has no idea how the technical details of email work, I don't see how those technical details can impact their expectations.

And they're wrong.

You're basing your "reasonable expectation" argument on the average user's ignorance of technical details of the Internet. Ignorance of the law (or aspects thereof) is not a defense; I'd argue against the system as it stands today having any privacy whatsoever.

If there's precedent here, it's the cases in which an employee's email is used against him/her by their employer, as the email was sent with, and stored on, company equipment. Last I checked, those cases had held up; the employee might have had what he thought was a resonable expectation of privacy, but he/she was wrong. It's a logical extension to include Comcast's cablemodems and mail servers in that category. The only wrinkle might be that the relationship is vendor/customer instead of employer/employee, but given the current nature of privacy legislation (eg all your data are belong to the government) I doubt that would stand up.

Fact of the matter is, their equipment, their rules. There is no wiretap legislation that applies to Internet traffic as of yet on the books, therefore there should be no reasonable expectation of privacy. The fact that someone might think there is, isn't a defense. If that defense was allowed, people would start to argue that they didn't know speeding was illegal, or that they didn't know drugs were illegal, and you wouldn't be able to prove otherwise.

The problem is the ignorance, not the (perceived) invasion of privacy. If an ignorant person makes a mistake based on their ignorance, they pay for it. (At least that's how IMHO it should work.)

Re:What part of

[tqk]

Don't ISPs have common carrier status, and doesn't that preclude them from monitoring your communications? And claiming common carrier status for ISPs when no such law has been passed is just plain stupid. Ahem.

dict stupid
          1. Very dull; insensible; senseless; wanting in
                understanding; heavy; sluggish; in a state of stupor; --
                said of persons.
dict ignorant
          1. Destitute of knowledge; uninstructed or uninformed;
                untaught; unenlightened.

Words have specific definitions for a reason. Stupid != ignorant. This of course makes you ignorant as well (though not stupid).

Re:What part of

[rajafarian]

The whole problem is that people only give a shit about federal politics.

Hmmm. I never looked at it that way (yes, I'm somewhat guilty of that). I'll have to think on it. Thanks for the feedback.

Re:What part of

[argel]

That right there is the key. There is quite a bit of legislation protecting phone conversations. There isn't similar legislation in the case of emails.

You should try reading the Bill of Rights sometime:

Ninth Amendment:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Tenth Amendment:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

Thus, until Congress passes a law or amendment to allow this actvity they do not have the right to do it.

It's really sad that most Americans do not understand this basic aspect of the Constitution.

Re:What part of

[Alchemar]

Lets clarify that last point, lets say a Verizon networked cell phone instead of fiber. Your conversation is now broadcast to everyone in a several mile radius. The goverment recognized your right to privacy when they passed laws making it illegal to recieve those frequencies, but other than from a legal standpoint, it is as public as it gets, but is still protected under phone tap laws because it is a private commincation between two individuals. If this can be protected, the internet can certainly share those protections.

Re:What part of

[bigpat]

Actually, I don't think so. For instance, your bags are subject to search without a warrant or probable cause if you are on the New York City public transit system

Ah but the legal theory there is based on consent. You can refuse to have your bag searched, but then you don't get to ride the train. Similar to the way government buildings search people, they can search your stuff because you give them permission to do so. At any point you could say no and turn around and leave. Same theory with airports. Not sure, how those signs that say that just being on the train or on public property means that you have already consented to being searched would legally work though. For practical purposes, you could just say you didn't see the signs and/or that you do not agree to be searched and then if they went ahead anyway then I believe the search would have to be considered illegal.

I could see how a judge might be tempted to allow illegal searches to go ahead, but I really don't see how you can claim consent if before the bag is searched the person would explicitly deny their consent. But I could see how once a sign like that was posted giving notification implied consent, then that would certainly apply to active scans of people and things like that.

But then again, good laws are being ignored for the sake of convenience here in the US these days, so pretty much all you need to do is claim some sort of vague legal principal of police necessity and crush whatever civil right you choose.

Re:What part of

[n00854180t]

Aye, it's true, should be and is are different. However, my analogies are far more consistent than the others that have been made thus far (i.e., that encryption is analogous to envelopes, when in fact that comparison is baseless, since encryption represents obfuscation/modification of data, while an envelope is merely a "cover" over that data, similar to how an email or text message is not readable unless it is first accessed from the disk into human readable form).

Re:What part of

[2short]

"You're basing your 'reasonable expectation' argument on the average user's ignorance of technical details of the Internet"

Yes, absolutely. Just as my ignorance of modern eavesdropping techniques does not impact my expectation of privacy in my living room. Frankly, I'd assume there is some sort of tech that would let someone across the street hear everything going on in my living room. But I quite reasonable expect them not to do it. One's expectation of privacy is not based entirely (or even chiefly) on others technical capabilities, but on societal norms. I expect conversations with my wife in our living room are private not because I expect nobody could listen in on them, but because I expect that in a civil society, nobody ought to listen in on them. If the government wants to violate that social norm, they need a warrant.

"The only wrinkle might be that the relationship is vendor/customer instead of employer/employee"

I'd call that more than a wrinkle.

"given the current nature of privacy legislation (eg all your data are belong to the government) I doubt that would stand up"

My understanding of privacy-related court rulings, is that (exactly that) has held up, repeatedly.

"There is no wiretap legislation that applies to Internet traffic"

But there absolutely is wiretap legislation that applies to wiretapping, period, no matter what is on the wire. The hypothetical average persons ignorance of technology, and awareness of social norms is absolutely relevant in *determining* what the law is in regard to privacy. It is not the same thing as a specific persons ignorance of what the law has already been determined to be when they violate it.

At root though, my "expectation of privacy" is not about anyones technological ability to surviel me. It is about the societal norms regarding whether they ought to. Whether they are the government or my ISP, even though they can, people ought not read private emails I send. I didn't send it to them, and I expect they will not read it. If they want to violate that expectation, they should get a warrant.

Re:What part of

[Artifakt]

Read my question again. Do you know of a case where a single person has been convicted of conspiracy to commit X, where there are allegedly no other people involved to make it a conspiracy? FYI, an unindicted co-conspirator is invariably a witness for the prosecution, not a nonentity whose name and circumstances of involvement will be witheld from a jury in open court. There may be reasons why an "UCC" won't be prosecuted, but those same reasons are not simultaniously reasons why they can't be prosecuted, and lumping the two together as you did is disingenious. You still can't prosecute any members of a 'ring' as you put it, without showing that a ring existed. You can't tie people to a conspiracy without showing that at least two people communicated.

Right to read

[laffer1]

This is more of a question rather than comment. Is it legal for them to read snail mail at the post office? Its stored there until you get it delivered. If no, then this lawsuit has a point.

Re:Right to read

[Marxist Hacker 42]

The difference being that the US Mail has laws protecting it's privacy. FedEx, UPS, and your local mailserver simply don't. It's perfectly legal for them to snoop on a FedEx overnight envelope while it's stored at a FedEx warehouse or when it hits the central depository in Chicago.

Re:Right to read

[BlaisePascal]

It is not legal without a warrant for them to open a letter you send at the post office. I suppose they could read a postcard. But the post office is a branch of the Federal Government, and not tampering with the mail is covered by other Federal laws.

From reading the article, it states that the Feds are relying on a 1986 law that gives them permission to do what they are doing.

Re:Right to read

[timeOday]

Is it legal for them to read snail mail at the post office?

Are you joking? I've woken up in the Soviet Union. No, the police cannot steam open your mail without a warrant. No, they cannot tap your phone without a warrant. (Until recently of course). Why we have given up on these principles and accepted universal wiretapping for newer technologies, I cannot imagine.

Re:Right to read

[BigBuckHunter]

More like, is it legal to get a court order to tell Mailboxes etc to give the police accesses to someone elses privately (Ups/Fedex) delivered parcel at Mailboxes etc?
 
I believe the answer is... Yes! I thought that this is something that was known and accepted for the last bajillion years? I remeber working at a BBS in the 90's. The police called and said that they were investigating one of our susbscribers and wanted his e-mail. I asked the boss, and he said "sure". No court order, no warrnt, we just gave it to them. It was a privately owned business, and the owner said, "sure".
 
BBH
Note to the spelling police, I'm on an iMac keyboard.

Re:Right to read

[zaliph]

Ahem.

"The privacy and security of mail are core values of the Postal Service. Information from the contents or cover of any customer's mail may not be recorded, photocopied, filed, or otherwise collected or disclosed within or outside the Postal Service, except for Postal Service operations and law enforcement purposes as specified in 39 Code of Federal Regulations (CFR) 233.3 and Chapter 2 of the Administrative Support Manual."
http://www.usps.com/cpim/ftp/hand/as353/a353c2_002 .html#vnameref_1

Which leaves a lot open to interpretation.

Re:Right to read

[ArcherB]

This is more of a question rather than comment. Is it legal for them to read snail mail at the post office? Its stored there until you get it delivered. If no, then this lawsuit has a point.

I think the question is more like:
If the Feds get a warrant to search a home, and in that home they found a snail mail letter from you, do they have the right to read it?

While we all agree that letters can not be opened at the post office (unless it's leaking white powder or something), does YOUR privacy carry over to the letter that is in SOMEONE ELSE'S hands, someone who can legitimately be searched?

Re:Right to read

[balsy2001]

I think this is only if Fedex lets them. My guess is that Fedex etal will say you can't haveinformation on our clients without a warrant/subpoena. Otherwise why not just station a lay enforcement officer at all FEdex depot to search everything for potential criminal activity. On a kind of related note, several of my friends used to work at a UPS center during college and they said their instructions from the company in the event of accidental opening was to put it back in the box and ignore it even if it was weed or something.

Re:Right to read

[Marxist Hacker 42]

I think this is only if Fedex lets them.

True.

My guess is that Fedex etal will say you can't haveinformation on our clients without a warrant/subpoena.

More likely, like most businesses, they'll take the easy way out unless forced to by contract law. I haven't examined the shipper contract on a fedex package recently- does it now include such a guarantee?

Otherwise why not just station a lay enforcement officer at all FEdex depot to search everything for potential criminal activity. On a kind of related note, several of my friends used to work at a UPS center during college and they said their instructions from the company in the event of accidental opening was to put it back in the box and ignore it even if it was weed or something.

Interesting. I wonder what the UPS contract says? Or maybe they simply don't want the issue coming up in case the government does just that: station a law enforcement officer at their depots.....

Re:Right to read

[Frequency Domain]

If you write your message on a post card, they certainly can read it. Normal e-mail is the electronic equivalent of a postcard. If you're e-mailing something that you wouldn't want send through snail mail without an envelope, you should be using encryption. That way, even if they have the right they may lack the ability (to misquote Shrek).

Re:Right to read

[Fastolfe]

Yeah, this is my understanding also. FedEx is in possession of your package (just as your ISP is in possession of your data). They're free to turn it over to the feds, if they want, but the feds have to have some sort of judicial approval in order to take it away from them without their consent.

Your UPS story seems like a good business decision, but that's all it is (as far as I know).

Re:Right to read

[Anonymous Coward]

What do you think our courts are for, anyway? I see two differences between electronic mail and postal mail:

1. One is digital and the other is not.
2. One has precedent in law protecting privacy and the other has not been around long enough to set precedent.

Why should privacy be different simply because it's digital? My opinion? It shouldn't be. This lawsuit definitely has a point and (IMHO) any reasonable judge would agree.

Re:Right to read

[Impy the Impiuos Imp]

If good old King George (no, of England, not W.) had spied on email on servers, they would have written the protection of same into the Constitution.

Hence for our government to do this is smarmy and not in accord with the spirit of the Constitution at the very best.

Re:Right to read

[siriuskase]

Not quite right. If the owner says "sure", well, then you do what your boss says. there is no law against him complying with the request, but there is no law compelling him to comply either. He could have said "no", then the police would have had to go back and get a warrant. If I was a subscriber who got stung by something they found, I would have considerred going after you and your boss legally. If the police were dumb enough to say where they got the information. Unfortunately, most pepole who were into BBSs subscribed to several.

Re:Right to read

[Marxist Hacker 42]

Courts are to interpret current law. You need Congress to enact new law. You're using the wrong branch of government. As to the rest, I agree.

Re:Right to read

[Anonymous Coward]

On a kind of related note, several of my friends used to work at a UPS center during college and they said their instructions from the company in the event of accidental opening was to put it back in the box and ignore it even if it was weed or something.

Shouldn't there be a law against instructing college students to ignore weed?

Re:Right to read

[master_p]

Laws are not valid per company. Laws are valid per state - they are a contract between people. Claiming that US Mail has laws and FedEx does not is absurd.

Of course all the above is nonsense if we admit we are in the age where corporations officially rule the world.

Might as well be me...

[manifoldronin]

The perpetually fitting joke: "Nothing to see here. Move along."

Your Grandma

[spribyl]

For those that don't already know this your grandmother reads your e-mail.
Plan accordingly.

Liability

[omeomi]

I wonder if it's possible to (successfully) sue whatever private entity gave up your email information (i.e. the "someone else's computer")...Seems like the government should be forced to get a warrant even for your email stored at your ISP...otherwise, your ISP should be liable for not protecting your personal information.

Re:Liability

[Fastolfe]

IANAL, but it is my understand that even if you could, you'd have to demonstrate harm that could be compensated. "Because it got me convicted of a crime" isn't something you can make a claim for. But if the situation were different and they turned over some trade secret to someone else, and that cost you a big contract, sure you could sue for that, so long as you could make a good case that your agreement with the carrier included a guarantee of confidentiality.

Hearsay Evidence?

[wiz31337]

Even if your e-mail is stored on another individual's computer seized under a search warrant, the government cannot use this information as evidence.

According to the Federal Search and Seizure Manual written by the Department of Justice:

See United States v. Upham,168 F.3d 532, 535 (1st Cir. 1999). First, the warrant must describe the things to be seized with sufficiently precise language so that it tells the officers how to separate the items properly subject to seizure from irrelevant items. See Marron v. United States, 275 U.S. 192, 296 (1925) ("As to what is to be taken, nothing is left to the discretion of the officer executing the warrant."); Davis v. Gracey, 111 F.3d 1472, 1478 (10th Cir. 1997). Second, the description of the things to be seized must not be so broad that it encompasses items that should not be seized. See Upham, 168 F.3d at 535. Put another way, the description in the warrant of the things to be seized should be limited to the scope of the probable cause established in the warrant. See In re Grand Jury
Investigation Concerning Solid State Devices, 130 F.3d 853, 857 (9th Cir. 1997). Considered together, the elements forbid agents from obtaining "general warrants" and instead require agents to conduct narrow seizures that attempt to "minimize[] unwarranted intrusions upon privacy." Andresen v. Maryland, 427 U.S. 463, 482 n.11 (1976).

Even if found by coincidence the "natural male enhancement" e-mails would not be admissible in a court of law, they would be considered hearsay.

Re:Hearsay Evidence?

[brunascle]

Even if found by coincidence the "natural male enhancement" e-mails would not be admissible in a court of law, they would be considered hearsay.

that's good, since the "evidence" could easily be forged.

Re:Hearsay Evidence?

[GodInHell]

Your citation is irrelevant.

The government's argument is that no warrant is necessary since your documents are stored in the open. The ISPs hand over the data willingly.

Thus, all that is necessary is to maintain the chain of evidence such that it is clear who wrote it, who recieved it, and who touched it between sending and its appearance in court.

-GiH

Re:Hearsay Evidence?

[bourne]

Yeah, but...

Read the article carefully. The ISP has the right to read the email, and pass it along to law enforcement.

USC 18, 2511(2)(a)(i):

It shall not be unlawful under this chapter for an operator of a switchboard, or an officer, employee, or agent of a provider of wire or electronic communication service, whose facilities are used in the transmission of a wire or electronic communication, to intercept, disclose, or use that communication in the normal course of his employment while engaged in any activity which is a necessary incident to the rendition of his service or to the protection of the rights or property of the provider of that service, except that a provider of wire communication service to the public shall not utilize service observing or random monitoring except for mechanical or service quality control checks.

Translation: If dork-o sends three billion copies of his spam through your ISP, he is going to impact your service. You are then justified, as a system administrator, to view those messages as investigation in the course of "protection of the rights or propterty of the provider of that service" - it is one of the exceptions under which wiretap is allowed. Once you've added up enough costs to interest the appropriate government resource,you call them in, provide them with the information that they couldn't get without a warrant - but you could! - and they're off to the races.

Re:Hearsay Evidence?

[Otterley]

You misunderstand the concept of hearsay in evidence law. Hearsay is cause for exclusion of a statement introduced for the purpose of proving the truth of the matter asserted in the statement. (i.e., it would be excluded if the issue was whether the pills really did provide "male enhancement"). However, to introduce the email for the purpose of showing that it violated a law relating to UCE would not violate any evidence rule.

Re:Hearsay Evidence?

[wiz31337]

My citation is perfectly relevant, if you would read my post a little closer you would notice that I said "another individual's computer" not an ISP.

I was making the point that if I sent an e-mail to my friend about something racy, and his house was stormed by the RIAA for having illegally downloaded Paris Hilton's new album, they would not have the right to my e-mail as evidence in a case against me.

I neglected to mention what I was getting at... This should be no different with ISPs.

Re:Hearsay Evidence?

[Original Replica]

"The government's argument is that no warrant is necessary since your documents are stored in the open."

I need a password to access my e-mail. Why is that considered "in the open"? Should ISP's be able to access my e-mail without my permission ? I consider my correspondence to fall under the catagory of "secure in {my} papers and effects" and since the government theoretorically get's it's power from a mandate from the people...

Re:Hearsay Evidence?

[GodInHell]

Sorry, your right I took off in the direction of the case presented in the article. Under the facts you present you're right. But if your friend willingly handed over the files, such a use would fall back into the hands of the goverment's argument.

This is similar to the way in which a government agent cannot record your speech without a warrant or permission (if not spoken in public, etc, usual caveats) but if a private person does so in a way that is not counter to state law, the feds can use that evidence and it is not hearsay - it becomes material evidence in its own right.

-GiH

Re:Hearsay Evidence?

[kilgortrout]

First, if you can estabolish with proper chain of evidence that the email came from the defendant than it would be admissible as under at least two exceptions to the hearsay rule: party admission and/or business records exceptions. Second, warrants can be easily tailored to meet the DOJ guidelines; it's done every day with regular mail. Finally, warrants are irrelevant here as email stored on third party servers can be examined without warrant under the Stored Communications Act of 1986. The constitutionality of that Act is what's at issue in this case.

Re:Hearsay Evidence?

[GodInHell]

A law was passed which grants federal agents free access to e-mail storred on ISP servers. They are thus "In the open" as in, stored where they can be accesed with a sheet of government parchment.

Please don't shoot the messenger, I'm just trying to break the argument at hand (plausible under the law as it stands) from the straw man presented.

-GiH

Re:Hearsay Evidence?

[Fastolfe]

This isn't accurate. Hearsay only applies to statements of truth, such as someone saying, "This guy broke the law!" If you sent that in an e-mail, and someone tried to admit the e-mail as evidence that the guy in question broke the law, this would be hearsay. But in this situation, it's the fact that the e-mail was sent that's important, and it's perfectly proper evidence for that purpose.

Re:Hearsay Evidence?

[masdog]

Just because a law was passed doesn't mean that it is legal. People always seem to forget that there is a Constitution.

Re:Hearsay Evidence?

[GodInHell]

No argument there. I was just stating the government's argument, no point in letting the water get muddy.

-GiH

Re:Hearsay Evidence?

[masdog]

I know. I was just making an oft-forgotten counterpoint.

Specific instance of a general problem

[Jerf]

This is just a specific instantiation of a general problem with computers.

With old-style non-electronic messages, there is no distinction between the contents of the letter and the physical letter itself. Hundreds of years of laws and general ethical principles were written based on the assumption this will always be true. Now it's not, and it's all breaking down, but most people don't even notice this is the root of the problem because the assumption is so deeply ingrained. Instead, they want to just hack around the problem, not noticing you really need to rethink the whole system.

Copyright has the exact same problem.

The internet privacy advocates mentioned in the article, which the general /. populace will probably view with more sympathy than the government, by claiming that email should be treated just like physical mail are really committing the same error as the government, who are basically acting as if they do have a place where they could grab a physical letter and therefore they can, just as if it were physically sitting somewhere.

The reality is that we need to sit down and really re-think the entire situation. The old model is broken.

Re:Specific instance of a general problem

[westlake]

With old-style non-electronic messages, there is no distinction between the contents of the letter and the physical letter itself. Hundreds of years of laws and general ethical principles were written based on the assumption this will always be true.

The telegraph was introduced in 1844.

The French began building a network using semaphores -- optical telegraphy -- in the 1790s.

But the fundamental abstraction of the message from the media is surely far older: all you really need is a relay chain, animate or machine, and some sort of temporary and back-up storage.

--- for the days when there is no sun, no wind, and the falcon ate your bird.

It is naive to think that these questions are novel and that they cannot be answered ---have not been answered --- within the framework of the existing legal system.

Re:Specific instance of a general problem

[Jerf]

Everything you mention works instantaneously, and wiretapping was hacked into the law as this utterly separate and novel activity. The original conceptions weren't changed, they were just left in their own little domain.

Now the domains are crossing, and all the old rules are breaking. Is an email more like a telegraph message or a letter? Neither; it isn't enough like either to reason about them based on telegraph messages or letters.

(This is a summary of a much more filled out point behind that link, although I notice just now the diagrams are broken.)

Re:Specific instance of a general problem

[westlake]

Everything you mention works instantaneously

not historically. not practically.

fog blurs your view of the semaphore. the pidgeon is caught in a head wind. the lines go down in a storm.

communication can never be instantaneous so long as the speed of light is finite. e-mail may move faster than the post rider. but the network remains the carrier, the network is not the message.

Is an email more like a telegraph message or a letter? Neither; it isn't enough like either to reason about them based on telegraph messages or letters.

a telegram was binary encoded text transmitted by wire. it could, almost from the beginning. be stored --- punch-holed -- into thin paper ribbons for delayed transmission or recovery.

there were networks, there were servers, in some recognizable form.

to me, this looks like e-mail.

Re:Specific instance of a general problem

[Anonymous Coward]

I tend to agree, though I think it can be fixed pretty easily. For example...

If you provide a service, then you are responsible for all related information. You will not release it to anybody, for any reason (except possibly in aggregate) without express written consent from all parties relevant to said information. If you do, accidentally or intentionally, without seeing a warrant first, then it carries civil and criminal penalties. Possibly add an exception for services that are free, and not terribly wide ranging (slashdot might not be covered, but GMail should be). There you have it, pretty easy.

This would have all sorts of great effects. First of all, network carriers might actually start to care about security. They might do (crazy) things like implement IPSec so that everybody in the world can't read anything you send over the wire. Cell phone providers might do likewise. Large corporations and universities wouldn't let copies of all your sensitive records just lie around on every laptop the firm owns, and might even take steps to encrypt them on the various drives, tapes and laptops where they do exist. In short, identity theft would go to virtually zero, and echelon (unless they can cut through point to point IPSEC) becomes effectively useless.

Sounds like a better world to me.

Right to Read

[Ice Wewe]

"Federal prosecutors say they don't need a search warrant to read your e-mail messages if those messages happen to be stored in someone else's computer."

So, does this rule also apply to remote servers? I know that Google claims that their bot only scans your email to target ads at the web-interface. But, one wonders, are they collecting more? What if the mail server is in a different country, would it be under different jurisdiction? For example:

I live in Canada, however I have a GMail account. So, if someone was onto me in the US, would they have to go through the Canadian legal system to gain access to my mail, or would they just show up at the Google server farm, and take the hard-drive with my mail on it?

When was this bill passed into law anyway? It seems like a major invasion of privacy.

Catch 22...

[the_skywise]

"E-mail providers also routinely screen messages for spam, viruses and child pornography. That further undermines claims to the privacy of e-mail, government attorneys say."

Good point here. If you're allowing a company to snoop your email for spam/viruses then you're already negating the privacy issue. If the judges decide that privacy wins out then the spam companies can sue to say that the big ISP's have no right to snoop their mail for spam before reaching your computer.

On the one side you've got the phone-call analogy (where the government can't eavesdrop on your phone calls even though they go through a public system) and on the other you've got the photo developing places which can turn over photos to the government if they deem something they see is illegal.

Definitely an interesting case.

Re:Catch 22...

[Deadplant]

I don't buy that one.
I pay an agency to come and clean my house, the women they send has keys, she comes and goes while I'm at work.
That's an arrangement I made with her. Is that supposed to mean that federal agents may now come and search my house any time they want without a warrant?
I gave up my privacy to google so they can perform specific tasks for me. (specifically, cleaning my email) I don't see the logical reasoning that leads from that to granting the FBI access to my email.

Re:Catch 22...

[UbuntuDupe]

I don't know how bad this analogy is, but ...

Good point here. If you're allowing a company to snoop your email for spam/viruses then you're already negating the privacy issue.

The Post Office checks for dangerous characteristics of packages (smell, leading, powdery residue, someone pounding on inside demanding that you let him out) without opening them. The ISP checks for dangerous characteristics without any human actually reading the content.

Re:Catch 22...

[Anonymous Coward]

Well that's where you are wrong.
I hav a secretary inmy office. She takes my calls because I asked her to do so. Once I have the call she is not allowed to bud in.
Same here. I have asked my ISP to use automatic means (Meaning not a person) to filter my e-mail and tag it. It would be a gross violation of my privacy if even my ISP (as in employees) read my email. Since I only allowed for automated screening (as in computer programs).

Where the Feds got the notion, that that opens any leeway for search and seizure is puzzling. I think its high time a judge stepped on some federal toes and reminded them what made this country great. It wasn't the FBI or searches without warrants. It was the Declaration of Independance claiming all to bve equal, constitution setting bounds for what Government can do, the Bill of Rights specifying some major unalienable rights, Miranda vs. US stating that the government has a duty to inform people of their right... It was the freedom not the security that made the United States the greates country on earth.
And it is security (or the pretense thereof) and not freedom that will be its downfall.

Re:Catch 22...

[pbjones]

Exactly, you can't have it both ways, but it is a question of what happens after they read the eMail. In the case of Spam, you are made aware of spam filters etc, and you may have the choice to not use them, but in the case like this, you are not told that people are reading you eMail, even when it is stored on another computer.

Re:Catch 22...

[gurps_npc]

Are you being sarcastic?

When I give company A permission to examine my email and categorize it for me, that in no way gives company A permission to show the email to anyone that does not work for company A.

Your argument would be similar to someone claiming "The fact that you paid the dry cleaner to clean your clothing grants the government the right to take your clothing and run tests to see if it had any blood stains on the clothing."

Such an argument is not what a court would call reasonable.

Re:Catch 22...

[the_skywise]

But in the case of email they're specifically looking at CONTENT. (for spam) Even in an automated fashion. The USPS is allowed to shake/x-ray/sniff/etc; the package but they're not normally allowed to look INSIDE the package unless it has some problem.

Contrast that with photo developing shops that handle photos on a daily basis where they're always looking at the content. The courts have found that it's perfectly legal for those employees to turn over the photos with possibly illegal content to authorities in those situations. (IE there's no right to privacy there)

The question is: Does automated email scanning fall under the photo analogy?

If so, the government wins.
If not, the spammers win because then they can successfully sue ISP's to NOT SCAN for spam.

Aha! You say, the ISP's can just charge an extra service fee for spam scanning to deflect the spammer's suit. THEN you have given up your expectation of privacy and THEN the government wins under the photo analogy.

Either way, it'll be up to the legislators to craft the law specifically to block the government from getting email in this fashion.

Any judicial decision won't correct the problem properly.

Re:Catch 22...

[businessnerd]

Actually the photo processing comment isn't entirely true. I used to work in a photo processing shop (fancy word for 1 hour photo or photo-hut). We looked at every single picture that came out of our machine. We were mostly looking at color balance and also weeding out blank frames and the occasionl finger covering the lense. The only thing we had to report to the police was child pornography. In fact we had one customer who skated that line so closely it was scary, but he skated the line on the legal side (unfortunatly). As for other illegal activity, I used to see it all the time, but we weren't obligated to report anything. These were usually the more interesting photos. Parties with underage drinking and drug use were the most common "illegal" photos. And of course every now and then, when the stars were perfectly aligned, you get the nudes. Unfortunately, most of the time it was not the people you wanted to see nude, and when they came to pick up their pictures, you would feel really uncomfortable, because you got a glimpse into a part of that person's life that nobody should be forced to see.

Re:Catch 22...

[the_skywise]

Not quite, your secretary is your employee and there's a reasonable expectation of privacy.

If you've entered into a contract with a third party and the contract states that they won't automatically turn over such information to outside interests then you have a reasonable expectation of privacy.

But you'll find that most typical ISP contracts/user agreements don't grant you that.

Even then that's not a good analogy for this case, really. We're talking about somebody sending your ISP a gajillion spams in bulk and the ISP is turning them over to the feds to get them to knock it off.

Re:Catch 22...

[nine-times]

Your argument would be similar to someone claiming "The fact that you paid the dry cleaner to clean your clothing grants the government the right to take your clothing and run tests to see if it had any blood stains on the clothing."

IANAL, but as far as I know, the police would be allowed to ask your dry-cleaner for any clothes in the dry-cleaner's possession. The dry-cleaner could refuse, and then the police would need to get a warrant, or the dry-cleaner could hand the clothes over without the police providing a warrant. Getting your clothes dry-cleaned doesn't give the police the right to search your house for clothing, but from what I understand, you can't leave your belongings just anywhere and have them protected from searches simply on the basis that they belong to you.

For example, if I left a personal letter opened, on top of my desk at work, my employer could permit police to look on top of my desk. I'm pretty sure about that, but not sure if my employer would be allowed to grant police permission to search my desk drawers. I would guess probably so, considering my employer owns the desk, but it might depend on the details. So while I believe my employer can give police access to my office, I don't believe my landlord can give access to my apartment.

So it seems to me that the government should definitely need a warrant to force an ISP to disclose the contents of e-mails, but it isn't clear whether your ISP can turn them over voluntarily. AFAIK, it does depend on a legalistic determination as to whether you have a reasonable expectation of privacy.

Re:Catch 22...

[foniksonik]

Hmmm i would interpret that example the same as giving an broker agent access to my credit history for the sole purpose of purchasing a home. I've given them permission. Without that permission they can't access my personal records, legally. Neither does it mean I have given access to those records to any other agent or the public.

Same is true for my emails and virus scanning. It just so happens that to get an account with an ISP it is most likely that I will be required to give them permission... as part of the contract, not by fed or state law, but by no means does that mean I have given the public or any other agency permission to do the same scanning.... in theory.

Re:Catch 22...

[the_skywise]

Financial records are protected by pre-established credit/finance law. Same with medical records.

Emails are not.

What if...

[BenSchuarmer]

What if the mail in question is a post card?

It seems to me, that anyone who wants to keep their mail private, should put it in an appropriate container (aka encryption).

One word..

[slummy]

Encryption. The apathetic always ask me, "Why encrypt your email/files?". This article is my answer to them.

Re:One word..

[MyLongNickName]

This article is my answer to them.

You send male enhancement emails?

Re:One word..

[Archangel Michael]

I'm sure their standard response is ... "I've got nothing to hide". They don't realize that at this moment, something in their email is innocuous, but that same something under another circumstance is not. That joke you sent two days ago about Jewish Holidays and religious practices is innocent until the proper hate crimes are applied to it, but only if you aren't jewish. Same thing with the "N" word, which is taboo unless you are of the proper skin pigmentation group.

Also, as a complete aside ...

Let me get this straight, people want to "enlarge" certain anatomical parts, so that they can be "seen" as being more impressive (see "Smiling Bob" commercial), but don't want people to know about their email containing products to supposedly accomplish said effect. Strange

Re:One word..

[AeroIllini]

One word... Encryption.

Encrypted email for the unwashed masses won't be a reality until there's a simple one click button for it in every client, webmail app, and PDA. Until GMail includes an "Encrypt before sending" checkbox, no one will take the time to use GPG or Enigmail or equivalents.

Which brings me to a question...

Is there a standard in the SMTP spec for public key swapping? In other words, let's say I'm sending an email from Server A to my friend Alice, who uses Server B. We both have created public and private keys, and will need to swap them to encrypt emails to each other. But I've never emailed Alice before. Is there an available spec in the email system that would allow Server A to hold my message after I click Send, and instead send a key request email to Server B? Server B would then respond with the public key that corresponds to the email address requested, in the form of an email, which Server A would store, and use to encrypt my original message before sending it. If the spec contained this functionality, it would all happen automatically, in the background, when I click Send.

I know Exchange has a system to keep track of public keys within its own system, but I'm not sure how it would deal with encrypting emails to other servers, without hand-entering the public key of the recipient.

Until this kind of Just Works (tm) system is put in place, and honored by a majority of clients, email will continue to be plaintext in the mainstream.

So is any encrypted message.

[FatSean]

I do believe the government can jail you indefinately if you won't turn over the keys. Hopefully they can't declare you an Enemy Combatant who can be dissapeared forever...but I'm sure Lil'Bush and Company are trying their darndest!

Re:So is any encrypted message.

[mark-t]

And what if you say you don't have the keys and you don't have any clue what the thing is about?

Seems that a really good way of getting someone you don't like incarcerated... send them some email (with a faked email return header, of course) that contains an encrypted message with no indication of how to decrypt it, but incriminating evidence within the email that its contents contain an illegal conspiracy.

Ultimately, if the person says they don't have the keys, the government would have to take them at their word or the above scenario would definitely occur.

Re:So is any encrypted message.

[snark42]

Maybe if you live in the UK. But what if you really forgot? or the HD with the public key is destroyed (that message is on the server, right.)

Re:So is any encrypted message.

[Anonymous Coward]

I've heard this "excuse" a hundred times. If you get to the point where a judge is ordering you to decrypt something it's been vetted and you've already lost. Judges aren't stupid, they won't buy your "it's just random data" excuse. Or maybe the "you don't know how to use this software" excuse. Sure, you talk tough on slashdot about how you won't hand over the keys, it's your right, whatever. It's very simple, if you have encrypted data that is part of a discovery in a case and you're ordered to decrypt it, you either decrypt it or you go to jail. You might sit in jail until you feel like decrypting it. It's pretty far into the process, if you're planning on not decrypting it or it contains your terrorist plans or whatever, you've already had ample time to flee the country.

It does ultimately come down to a judgement call there are probably a lot of variables that go in to how it comes out, not the least of which is how cooperative you have been up to that point. It's not like they just show up at your house and demand encryption keys, we're talking about charges being brought up, going through arraignment and now a trial.

Re:So is any encrypted message.

[mark-t]

If that's how the court wants to rule it, then it would be pitifully easy to frame people simply by sending them encrypted data that they don't have the keys for.

Re:So is any encrypted message.

[operagost]

I do believe the government can jail you indefinately if you won't turn over the keys

You believe wrongly. This is not true in the USA; however, it IS true in the UK.

Re:So is any encrypted message.

[Anonymous Coward]

Yep.

Interesting thing

[gillbates]

So, if I understand this right: The executive branch believes it has a right to read our email, because we have no "Constitutional" expectation of privacy, but the White House can refuse to turn over emails to Congress, because, alas, email is private?

So, I guess the Constitution gets interpreted differently when the subject of an investigation is the President. Hmmm....

Re:Interesting thing

[east coast]

Not knowing the exact incident you're talking about I think the article does a somewhat shoddy job of describing what exactly is legal.

IANAL but my take on this is that if there is a search warrant on your PC for child pr0n that I would not have to be served a warrant as well if I sent you the files in question and that these same files that are being used against you as evidence would also be evidence that could be used against me as the sender.

Furthermore I'm reading it as if I had child pr0n in my GMail account a warrant could be served against Google to get evidence from my GMail account without having to serve a warrant to me. This seems to me that they are basically saying that the mail itself is the property of GMail and not mine. This brings up the question of; can I refuse to honor their request to see my e-mail if it's handled on a third party server (Google in the case of GMail) since I do not technically have ownership of this mail? Do I even have the ability to show them this e-mail since the warrant would only cover my own property?

I don't think there is any real question of legality in my first scenario under today's law but the second one may be more questionable under current law.

Again, IANAL and most of this should be taken as a question more than an answer as to what is currently legal and illegal involving e-mail seizure.

Re:Interesting thing

[Cheapy]

Are you claiming that the President has ever done anything wrong in his 6 glorious years at the White House?

You must be a terrorist!

Re:Interesting thing

[kilgortrout]

You analysis is wrong. The government has always had the ability to obtain a search warrant on your porperty held by third parties upon a sufficient showing of probably cause. There's nothing new in that and they don't have to give you notice of the warrant either although the third party custodian often will. Here, the government is contending it can dispense with the warrant requirement for email stored on third party servers under the Stored Communications Act of 1986. The plaintiff in the case mentioned in the article is challenging the constitutionality of that act.

Re:Interesting thing

[meta-monkey]

No, that's not what this is about.

The crux of the matter is that the owner of the machine on which the email resides is the focus of any attempt to read said email. So if your ISP has your email on their server, the feds can ask them if they'll hand over the email, without ever having to ask you. The ISP can either say, "Sure, here it is!" again without having to ask you, or they can say "No, we keep our customer's email private." At that point, the feds can get a warrant to search the ISP's computers, again without having to ask you.

In the case of the White House, I imagine they have their own, highly secure email servers, on which the President's email is stored. It is not stored by another outside ISP. Therefore the only way for Congress to get the President's email is to ask the White House, or subpeona it.

Not that that would matter, anyway. See Executive Privilege.

Sorry, I know a "Bush is evil" post is an easy +5 on /., but you're barking up the wrong tree on this one.

Re:Interesting thing

[Anonymous Coward]

the feds can ask them if they'll hand over the email, without ever having to ask you. The ISP can either say, "Sure, here it is!" again without having to ask you, or they can say "No, we keep our customer's email private.

Actually that's not quite what this case entails. The feds presented a court order that did not meet the same standard as a warrant. The order compelled the ISP to turn over the email whether they wanted to or not. The defendant is arguing that the government can not compel the ISP to turn over another person's private material without a search warrant.

Privacy and email

[jhines]

If you want privacy on email, that is what port 25 is for, and the sender can exchange email directly to the receipent.

When the email hits a third party server, it is just data to them, and they can do what they want with it, subject to whatever agreement you have. So unless you signed a deal with them (IE your ISP) there is nothing special about it.

As long as the authorities got proper warrants to serve the third party for their data, they get it.

Re:Privacy and email

[sparcnut]

If you want privacy on email, that is what port 25 is for, and the sender can exchange email directly to the recipient.

Since many (most?) ISPs block outgoing and/or incoming port 25 to any host other than their own mailservers, this is not a valid option.

Precedent?

[JimXugle]

How about we take precedent from the USPS?

Unencrypted email is like a post card.
Encrypted email is like a letter.
When you leave a post card in your house, it's yours and the government needs a search warrant to read it, ditto with letters.
When you leave a post card in someone else's house, it's still yours, but the government needs a search warrant to search the other person's house to get it, ditto with letters.
Anybody in the USPS can read your post cards, however it is illegal to open letters.

Therefore, the best way to keep your email secure (in the legal way and the technical way) is to encrypt it and store it on someone else's computer.

Re:Precedent?

[forgotten_my_nick]

> herefore, the best way to keep your email secure
> (in the legal way and the technical way) is to
> encrypt it and store it on someone else's computer.

As long as that persons machine isn't a laptop and they try to bring it through US customs.

Re:Precedent?

[JimXugle]

Can the customs agents refuse you entry or take the laptop just on the grounds that there's encrypted information on it?

Re:Precedent?

[forgotten_my_nick]

In the US they can. Ignoring refusing entry they can take the laptop and copy the contents (even deleted sectors) and also arrest you if you don't hand over any passwords required to access the machine.

Been like that for a few months.

In Other News

[Aqua_boy17]

I just read that the President wants to increase the size of the military in Iraq. Maybe someone should tell him about this "natural male enhancement" so we can use it there?

All email is stored on someone elses computer!

[deaton]

Federal prosecutors say they don't need a search warrant to read your e-mail messages if those messages happen to be stored in someone else's computer. My ISP doesn't allow me to run my own mail server, so all my email gets stored on their computers. Additionally, the email resides (at least temporarily) on both the sender's and receiver's computer. One of which is likely to be someone elses computer, if we're not talking about intra-organizational email.

What moron modded you "insightful"?

[mmell]

Your assertion is not unlike suggesting that I have no expectation of privacy in postal mail because for a length of time it was in the posession of a Federal agency, the US Post Office.

Re:What moron modded you "insightful"?

[Marxist Hacker 42]

Your assertion is not unlike suggesting that I have no expectation of privacy in postal mail because for a length of time it was in the posession of a Federal agency, the US Post Office.

And that would be completely correct if it wasn't for a set of special laws protecting the US Post Office- that same set of laws has NOT been passed for the Internet. If you want them- you need to write your congress critter.

Sure I am guilty...

[Anonymous Coward]

The mentality that has arisen, one of guilt taking a back seat to the method by which you are found guilty, has taken some seriously odd turns. In this case, the actual information indicating that this guy is guilty seems to hold no importance with the court, or the people.

I will probably never fully understand how the actual information used to initiate the prosecution is swept under the carpet in favor of focusing on the method by which it was gathered. And lets keep in mind that at the time of the gathering of information, the process used was completely legal.

Let us assume for one crazy second that this joker actually wins... will he then be presumed innocent even though the accuracy of the information in question was never challenged? In my mind this equates to the police finding a chopped up body in someone's living room, and having the case thrown out of court because they only got a little permission to search, not a full search warrant. I don't pretend to know the minutia that makes up our legal system, so I encourage someone to set me straight.

Re:Sure I am guilty...

[Mathonwy]

Are you kidding? The method by which the information was gathered is INCREDIBLY important to a case. It has to be. Some brief examples of why:

Judge: "Very compelling evidence here. How did you come by it?"
Sherrif: "Me and the boys made it up. It seemed like the sort of thing he would do."

Judge: "Very compelling evidence here. How did you come by it?"
Sherrif: "One of our men went undercover and pretended to be his friend. He wasn't originally planning on doing it, but after our guy kept encouraging him, he managed to convince him to consider it. Then we nabbed him!"

Judge: "Very compelling evidence here. How did you come by it?"
Sherrif: "We broke down his door, surprising him in the act."
Judge: "Very fortunate! How did you know it was him?"
Sherrif: "Oh, we didn't. We just went down the line and kicked in all the doors on all the houses on the street until we found someone doing something guilty."

Judge: "Very compelling evidence here. How did you come by it?"
Sherrif: "We just held his head underwater until he thought he was drowning. We did it enough times, and he confessed to everything. He didn't even read the confession we prepared for him! He was just that eager to sign. Must have had a guilty concience or something."
[optional ending]
Judge: "Very fortunate! How did you know it was him?"
Sherrif: "Oh, we didn't. We just started torturing people. Eventually they always confess to SOMETHING..."

So let's review. In example #1, it matters how they got the evidence, since it matters that it actually be, you know, EVIDENCE. #2 is what is called "entrapment", and is kind of a manufactured guilt. (i. e. they woudn't have been guilty of anything except that an undercover officer went and tried to convince them to do something illegal.) #3 is an example of where [possibly] justice was done to one person, at the expense of the justice of everyone else. (How would you like to have your door kicked in some day by police, who then say "ok, you're clean. Just checking!" Would the knowledge that they MIGHT catch someone that way be enough to offset your outrage at having your privacy invaded and your posessions broken?) And finally, #4 kind of speaks for itself. (I hope.)

So yeah. The reason that there is a mindset that "how the evidence is gained matters as much as the guilt" is because it kinda does. Or how about this: Think of it from a logic perspective - Your proofs are only as strong as the axioms they are based on. Legal judgements only have as much justice as the evidence they are based on. So before handing out judgements, it's INCREDIBLY IMPORTANT to make sure that the evidence is all on the up-and-up. You are probably thinking of cases where "well, everyone knew he did it, who cares how they proved it? If he walks, it's on a technicality", but YOU CAN'T CONVICT SOMEONE BASED ON "everyone knows they did it." And you SHOULDN'T be able to. (That way leads to mob-rule.)

Re:Sure I am guilty...

[Anonymous Coward]

Sure, all of those (funny) possibilities are important, but not when the information in question is documents. Did they hold the email under water until it changed to fit the bill? Did they kick down the door to the email's home and catch it being... an email?

Situational evidence such as you describe is a perfect example of why we need to have due process. Discovering (completely legal discovery mind you) documents that are irrefutable is not vulnerable to intimidation tactics. Sure, they could have made all of this up... but your not understanding where I am coming from. I am not talking about these documents being falsified and that is his argument, his argument has nothing to do with the validity of the information, just the (completely and totally) legal way by which it was seized.

Again... the validity of the information (your entire argument) is not in question, you imply that through intimidation tactics and shotgun investigations they happened to find this guy as guilty... What is in question is the method by which it was discovered. If the police DID walk down the street kicking in every single door and they found some guy stabbing his wife to death with an ice pick, I would want that guy arrested and thrown into the slammer without argument, and I could care less if the police kicked in 50 doors to find him. Sure, police kicking in doors is a completely separate problem that should be treated as such, a separate problem.

Judge: How did you find this information?
Sheriff: We kicked down 200 doors and we see this guy stabbing his wife.
Judge: Well... pack your crap, your fired. Wife stabbing guy... how do you plead?
Wife stabbing guy: Innocent, they didn't knock first.
Judge: if they had knocked, would you have not killed your wife?
Wife Stabbing guy: Probably not... I really wanted to stab her.
Judge: Gotcha... Pack your crap, your going to jail.

If the information is irrefutable, and is 100% accurate, how does the discovery abolish the crime?

Re:Sure I am guilty...

[amliebsch]

Hmmm...you're really dodging the OP's point though. HOW the evidence is obtained often goes directly to the question of credibility of the evidence. But we already have a method for challenging questionable evidence, and that is with testimony at trial. And I don't think anybody would dispute that improper evidence gathering should be admissible at a trial to undermine the credibility of the evidence thereby collected. But the question you are dodging is about evidence that is totally credible, but cannot be used because it was improperly collected. If the evidence gatherers make mistakes or commit wrongdoing, it is sensible to punish the evidence gatherers. But only in the United States does the law reward the criminal for the mistakes or wrongdoing of others. Clearly, the rationale is that rewarding the criminal punishes the evidence gatherers to the extent that the evidence gatherers really want the criminal to be convicted - but why is this the only legitimate remedy? Is there really nothing else that can deter evidence gatherer? You don't provide a good answer.

Re:Sure I am guilty...

[Just Some Guy]

#2 is what is called "entrapment", and is kind of a manufactured guilt. (i. e. they woudn't have been guilty of anything except that an undercover officer went and tried to convince them to do something illegal.)

Actually, my understanding of entrapment is that it involves coercion, eg they get you to do something you would not normally voluntarily do on your own. IANAL, though, so take that for what it's worth.

Re:Sure I am guilty...

[SoulRider]

The really scarey thing is law enforcement has done all of that already in this country. That why we have the laws to control law enforcement that we have.

In Soviet Russia...

[Kelson]

I've woken up in the Soviet Union. No, the police cannot steam open your mail without a warrant. No, they cannot tap your phone without a warrant. (Until recently of course). Why we have given up on these principles and accepted universal wiretapping for newer technologies, I cannot imagine.

Kind of makes you wonder who really won the Cold War, doesn't it?

We've obviously been doing better than Russia and most or all of the other former Soviet republics, and capitalism clearly triumphed over communism, but when it comes to personal freedoms, we're doing to ourselves what we feared the Soviets would do to us. Did we really come out on top?

Re:In Soviet Russia...

[daveschroeder]

We've obviously been doing better than Russia and most or all of the other former Soviet republics, and capitalism clearly triumphed over communism, but when it comes to personal freedoms, we're doing to ourselves what we feared the Soviets would do to us. Did we really come out on top?

Considering this law is the Stored Communications Act of 1986, and the Cold War wasn't even over yet then, yes, one does wonder.

...

Seriously, I know most people reading this will think this is some "new" law. No, what's "new" is that the already existing law is being *challenged*, or at least the interpretation of it.

So that's a good thing, right?

Or is it better to make it look like a 20-year old law represents some "slippery slope" that we're slipping downward into?

Re:In Soviet Russia...

[JavaLord]

We've obviously been doing better than Russia and most or all of the other former Soviet republics, and capitalism clearly triumphed over communism, but when it comes to personal freedoms, we're doing to ourselves what we feared the Soviets would do to us. Did we really come out on top?

Maybe you haven't been paying attention to what goes on in Russia lately, but you should look into the stories of Alexander Litvinenko, Anna Politkovskaya, Paul Klebnikov, Artyom Borovik and a few others.

You don't see things like that happening over here. When Keith Oberman is gunned down for criticizing the government, then you can start comparing America to modern day Russia. Americans today don't face anywhere near the type of oppression that people did in Soviet Russia. While outlandish statements like that may earn you mod points here on slashdot, or replies on other fourms, they don't add to meaningful discussion.

A better question in my opinion would be, what would our founding fathers think of such government actions if they were alive today?

Re:In Soviet Russia...

[meta-monkey]

Oh, please. How's life in the gulag there, comrade? Oh, what's that? The FBI didn't bust down your door for not liking George W. Bush? Imagine that!

You might be overreacting just a touch. Godwin's Law should cover mentioning the Soviets, too.

Re:In Soviet Russia...

[pluther]

...when it comes to personal freedoms, we're doing to ourselves what we feared the Soviets would do to us.

It's all part of the War on Terror, you know.

Why do the terrorists attack us? It's because they Hate Our Freedom.

Get rid of that, and we'll be rid of terrorism.

Re:In Soviet Russia...

[Anonymous Coward]

While outlandish statements like that may earn you mod points here on slashdot, or replies on other fourms, they don't add to meaningful discussion.

But hyperbole is so much fun!

Re:In Soviet Russia...

[GodInHell]

We've obviously been doing better than Russia and most or all of the other former Soviet republics, and capitalism clearly triumphed over communism, but when it comes to personal freedoms, we're doing to ourselves what we feared the Soviets would do to us. Did we really come out on top? Try to remember that for the McCarthy era Americans, the USSR was Stalanist ("I killed more innocents than Hitler by a factor greater than ten") Russia. During the height of the cold war these rights were often shelved (J. Edgar hoover anyone?) in favor of protecting the cornerstone rights of liberty, and life. Looking back we judge them harshly. I have no doubt my children will likewise look back at us and wonder what was wrong in our heads.

We may have adopted the Gulag, the night police and the shadow government, but at least we retain the power to remove the party from office - that's how you can judge our success or failure. When one party claims dominance and owns the system so thoroughly that they become entrenched, then we'll have lost.

-GiH

Re:In Soviet Russia...

[Mixel]

Maybe you haven't been paying attention to what goes on in Russia lately, but you should look into the stories of Alexander Litvinenko, Anna Politkovskaya, Paul Klebnikov, Artyom Borovik and a few others

Has it occurred to you that those killings are aimed at destabilizing the Russian government. At making that government look evil. I mean, what government agent/agency would use several million dollars worth of pollonium just to knock out one guy? Heck, they'd probably sell it on the black market for a bundle and use something cheaper. The money just isn't there. Money is in the hands of Boris Berezovsky and similar. The motivation isn't there either, why knock these people out at all? It isn't like they were denting the government's popularity, they weren't even scratching it. I figure, with elections are only a couple of years away, the oligarchs don't want Putin's nominee beating one of their own.

Re:In Soviet Russia...

[Firefly1]

Godwin's Law should cover mentioning the Soviets, too.

It doesn't. From the Wikipedia article:

"As an online discussion grows longer, the probability of a comparison involving Nazis or Hitler approaches one."

It does not pass any judgement on the aptness of said comparison.

Re:In Soviet Russia...

[Anonymous Coward]

Er, yeah, that's true. That's why this guy said "Godwin's Law should cover mentioning the Soviets, too."

Re:In Soviet Russia...

[Anonymous Coward]

Did we really come out on top?

Yes, we did indeed come out in top, and for a short few years it looked like the communist scare was gone. Then they found the terrorists to be an even better excuse to cut down our rights.

Re:In Soviet Russia...

[JavaLord]

Has it occurred to you that those killings are aimed at destabilizing the Russian government.

At destabilizing the Russian government? No, that is a new one. I have read articles which state the opinion that Putin is being framed. I don't really buy into that.

At making that government look evil.

To what end? Russia is getting into the WTO, and the US surely isn't going to do anything about a few Russia journalists and dissenters getting knocked off. Hell, Bush probably envies Putin for doing it.

I mean, what government agent/agency would use several million dollars worth of pollonium just to knock out one guy?

One that is trying to send a message to people who critize it. The same message that was sent with the slaying of Anna Politkovskaya, but louder. One that clearly says "It doesn't matter where in the world you are, if you fuck with us we will kill you and it will be painful".

Heck, they'd probably sell it on the black market for a bundle and use something cheaper.

Selling it on the black market to who? If they turn around and sell it to the wrong people and it's used against the west, it would end in nuclear war. The risk simply wouldn't be worth the reward.

The money just isn't there. Money is in the hands of Boris Berezovsky and similar. The motivation isn't there either,

Russia's GDP is about 1.5 trillion. Berezovsky is worth about a billion? The money is there.

why knock these people out at all? It isn't like they were denting the government's popularity, they weren't even scratching it.

I believe they were claiming they had proof the FSB faked a terrorist attack in Chechneya to validate some military action there. [quote]I figure, with elections are only a couple of years away, the oligarchs don't want Putin's nominee beating one of their own.[/quote] Maybe, but what is more likely? That Berezovsky somehow stole the Nuclear material and managed to use it on Litvinenko, or that the FSB did it under the orders of Putin? If Berezovsky hates Putin so much, why kill his detractors? Killing them surely hasn't turned the Russia people against Putin. A lot of articles I read claim that many Russians see Politkovskaya as a traitor anyway.

Re:In Soviet Russia...

[Impy the Impiuos Imp]

At least hyperbole isn't the Newspeak that could still be found on the BBSs of what would turn into the Internet in a few years, wherein people claimed with a straight face that the Berlin Wall was to keep people in the West from fleeing to the communist countries (claimed by people in the West, naturally.)

Re:In Soviet Russia...

[iminplaya]

...but at least we retain the power to remove the party from office...

But we dare not use it lest we suffer the consequences, like having that power removed. And at this point, the country is effectively under one party rule. It just answers to two different names. Any attempt to remove it from power will not bring the desired results. I would love to be proven wrong.

When one party claims dominance and owns the system so thoroughly that they become entrenched, then we'll have lost.

The most common name is "republicrats" or is it "demicons"? Either way they are indeed thoroughly entrenched, maybe so deeply that we can bury them alive.

Re:In Soviet Russia...

[Charles Dodgeson]

While I deplore the growing extent of government snooping, I think that such comparisons with the Soviet Union are misleading. I don't think that anyone who has lived under a communist dictatorship would suggest that the US is in the same league with respect to domestic spying.

When protesting government intrusion in the US, it is very useful to hold up the Soviet Union as an example of what is wrong with lack of protection of privacy. But to suggest that we are already (or even nearly) there makes one look foolish to anyone who's experienced the real thing.

Re:In Soviet Russia...

[GodInHell]

I disagree - but them I'm a firm democrat partisan.. so maybe that's why.

Both parties are still composed of individuals - currently both are trying to find an identity. The individuals that compose the parties are acting foolishly in a time of crisis and falling into line where that is not what is best for the country. It's an unfortunate human trait to conform when afraid. Many of those individuals got a good scare in the primary races this time around, which will hopefully scare them back into action.

I'd rather be right here for the good of the country - but I'll admit I see your point. I'm waiting to see what happens in january / february.

-GiH

Re:In Soviet Russia...

[siriuskase]

Do we really have 2 separate parties? They may bicker over various issues, but when the same two parties agree on the basic mechanics to the extent that it is impossible for a new party to be taken seriously, we have a huge problem if they both agree that we know longer need our civil liberties.

Re:In Soviet Russia...

[Mixel]

Heck, they'd probably sell it on the black market for a bundle and use something cheaper.

Selling it on the black market to who? If they turn around and sell it to the wrong people and it's used against the west, it would end in nuclear war. The risk simply wouldn't be worth the reward.

I take it you're not from Russia, then.

How I Learned to Stop Worrying...

[jac_at_nac]

...and Love Email Encryption.

Re:How I Learned to Stop Worrying...

[bilbravo]

Ok, everyone is going on about encrypting their e-mail, but I don't get it... so I'm about to willingly show my ignorance:

If I encrypt MY e-mail with whatever, I assume PGP, then send it to someone, they have to have a key to decrypt it. Does that mean everyone I know has to have my key and the knowledge/ability to decrypt the message? Also, can I do this with any e-mail? (i.e. webmail? or only Pop3? Only Exchange, only IMAP?)

Someone please explain.

Re:How I Learned to Stop Worrying...

[Qzukk]

Yes. It means that you and everyone you know are going to have to read the instructions on your mail client on how to encrypt and decrypt your mail. You can do it on any client that supports it, though most webmail clients do not directly (though you could write the email in a text editor, encrypt that, and attach the file to an email). You will all have to meet in order to exchange public keys securely and keep your private keys safe.

Re:How I Learned to Stop Worrying...

[BradleyUffner]

look up public key cryptography. It basicly works using a pair of keys. things encrypted with one key can can only be decrypted with the other key.

So i want to send a message to you. I lookup your public key, encrypt using it. only someone with the private key can read it, which should only be you.

Re:How I Learned to Stop Worrying...

[bilbravo]

This is exactly as I had suspected... so basically this is only something I can do with my fellow geek friends.

Re:How I Learned to Stop Worrying...

[Eric in SF]

And how you'll learn to love being in prison when your encrypted email catches someone in authority's attention and you refuse to decrypt the message and a judge throws you in the clink for contempt. Encryption is a false security, IMO.

Re:How I Learned to Stop Worrying...

[Abcd1234]

You will all have to meet in order to exchange public keys securely and keep your private keys safe.

WTF are you talking about? No you don't. The very purpose of public key encryption is so you *don't* have to exchange keys over a secure channel.

For the GP, it works like this: you have a public key and a private key. The public key is published anywhere. On the web, in your signature, some PK warehouse somewhere, wherever. You private key, you keep safe, probably locked up with a password and encrypted with a symmetric cipher.

When Bob wants to send you an email, he retrieves your public key and encrypts the text using it. At this point, the only way to retrieve the plan text, assuming the original was thrown away, is to decrypt it using *your* private key, which is, of course, safe and secure. Hopefully.

Meanwhile, prior to sending, Bob generates a secured hash over the plain text using his *private* key. After decrypting the email, you validate that hash using Bob's public key. Voila, Bob's identity is verified (or, at least, you've verified that the sender is in possession of Bob's private key).

Honestly, this is very very basic assymmetric encryption stuff. Frankly, I'm not sure how the parent got it so wrong.

Re:How I Learned to Stop Worrying...

[Abcd1234]

See my other post above. The parent apparently doesn't understand PKI.

Re:How I Learned to Stop Worrying...

[Qzukk]

The very purpose of public key encryption is so you *don't* have to exchange keys over a secure channel.

OK, you got me, you don't have to exchange keys over a secure channel, you just have to securely confirm that the key you have is in fact Bob's key, and not some other key that someone put Bob's email address on.

Re:How I Learned to Stop Worrying...

[Abcd1234]

Very true. The big concern is that the public key Alice gets for Bob is not, in fact, Bob's key. Of course, for your average person, the odds of this happening are extremely low. But, if this is an issue, you can (as you say) either share the public key on a separate, secure channel (heck, simply hashing it with a symmetric cipher and sharing the symmetric key over the phone would do the job for most paranoid people), or you can make use of webs of trust.

But, again, 99% of the time, this isn't a huge concern unless you're already the target of the government or a black hat (who is trying to spoof Bob). And if you are, you can probably spend the extra effort to safely distribute your public key to the necessary parties.

"Government Has a Right to Read Your Email?"

[AK Marc]

I read the sensationalist title, and I read the summary, and I read the article. From that, there is no one disputing the governent having the right to read your email. The title is implying that the government is reading people's emails without cause. Regardless of whether that is the case, that is not related to what is happening here. The only question is what level of paperwork the government must go through.

During the investigation, agents obtained court orders allowing them to collect thousands of Warshak's e-mails from Yahoo and another e-mail provider. A court order requires a lesser burden of proof than a search warrant.

Everyone is in 100% agreement that with a search warrant, the government may obtain the emails in question. So, the answer to the useless title is "Yes, everyone involved in this case agrees that the government may read your emails." But an accurate title wouldn't have been as sensationalist. I guess generating page views is much more important than actually being descriptive. I don't mind whoring for page views. That's the nature of the Internet. I do object to lies and misleading statements designed to generate page views. I think that Slashdot has gotten to the point where the paid editors are supposed to post dupes, bad grammar, wrong titles, and such in order to bring out the people that complain about them (unfortunately, I'm in that group).

Let me see if I've got this right

[rewt66]

Some sleazebag spammer sends me spam. I complain to the authorities. Said authorities decide that the spammer is breaking the law (fraud, spam laws, whatever). And the spammer says that the e-mails can't be used as evidence against him, because it's his private communication? That's the craziest legal theory I've heard since SCO.

You send your trash to me, I'll let the feds take it as evidence, gladly. You send several million of your trash to Yahoo, Google, and Hotmail, and they probably feel the same.

Free clue to spammers: The feds aren't the ones invading our privacy here. You are.

Re:Let me see if I've got this right

[VidEdit]

"Said authorities decide that the spammer is breaking the law (fraud, spam laws, whatever). And the spammer says that the e-mails can't be used as evidence against him, because it's his private communication?"

Of course his emails can be used against him. The Feds are able to use e-mails he sent as evidence if they are turned over by the recipients. They are also able to use the e-mails on his computer or his ISP's servers if they get a search warrant. This fight is weather a mere court order based on a lower standard of evidence than a search warrant, e.g., a subpoena, may be used to access his emails on his ISP's servers based on the idea that nothing is private unless it is on your personal property--a silly contention since we entrust our email to the custody of our ISP with the clear intention that it be delivered only to the addressee.

Re:Let me see if I've got this right

[antispam_ben]

Some sleazebag spammer sends me spam. I complain to the authorities. Said authorities decide that the spammer is breaking the law (fraud, spam laws, whatever). And the spammer says that the e-mails can't be used as evidence against him, because it's his private communication?

IANAL but I might argue that sending a document in as few as ONE unsolicited email makes it NOT a private communication, but rather an attempt at widely publishing the document as an advertisement, even if it says (quoting from a "You won a lottery" spam):

Due to mix up of some names and addresses, we urge you to keep this winning personal and discreet until your claims have been processed and your funds remitted to you, this is part of our security measures to avoid double claiming or unwarranted abuse of the system by other participants or impersonators.

Even if this IS a good argument in other email communications, it's a really stupid argument for a spammer. Hmm, that jibes really well with Rule #1 (or is it #3? reasonable websites disagree on this) about Spammers.

Encryption

[SirGarlon]

The gov't can read my e-mail all they want. At least, they can try to. http://enigmail.mozdev.org/

Re:Encryption

[westlake]

The gov't can read my e-mail all they want. At least, they can try to.

Well, that is the problem, isn't it?

Until your correspondents sign on to your program, no one can read your mail.

Reasonable

[endianx]

But federal prosecutors say they don't need a search warrant to read your e-mail messages if those messages happen to be stored in someone else's computer. That seems perfectly reasonable to me, assuming they do have a search warrant to look at that other person's computer.

Re:Reasonable

[DragonWriter]

That seems perfectly reasonable to me, assuming they do have a search warrant to look at that other person's computer.

No, what they usually have is the consent of the other person, who doesn't care about your privacy. Additionally, there usually is no practical remedy if the person whose privacy is violated isn't the one that the evidence is used against, as the principal remedy for illegally seized evidence (exclusion at trial) can only be invoked by the person whose rights are violated. Evidenced seized in violation of someone else's rights won't be excluded.

Re:Reasonable

[endianx]

No, what they usually have is the consent of the other person, who doesn't care about your privacy. The person I send mail to has the right to do whatever they want with it. So does my mail provider assuming they tell me their 'privacy policy' before hand. I guess where I would start to have an ethical problem would be if the mail provider of the person I sent the mail to released it to the government. I never agreed to their privacy policy.

Re:Reasonable

[pacalis]

Couldn't, reasonable expectation of privacy be applied to the case when there is a contractual expectation that the ISP will not release the data except as required? What I'm getting at is isn;t there a difference between 'as required by law' vs. 'as required/requested by a law enforcement agency?"

If your email is on my server

[wiredog]

Then I can do with it what I want. Including give it to someone else.

Re:If your email is on my server

[Deadplant]

If I have a gun in my hand and you don't then I can do what I want. Including shooting your kneecaps crippling you for life.

We're talking about what you "should" do not what you "can" do.
Sadly under this administration many US agencies have been displaying an eager "can-do" attitude.

Difference between phone & email

[Anonymous Coward]

In short, I'm having a hard time seeing why an unsecured communication between two people should be protected when it's a phone conversation taking place over, say, Verizon-owned fiber, but not if it's an email saved on a Verizon-owned hard drive.

Because there are very specific laws protecting phone calls.

Unencrypted email is more like a post card with no envelope than a sealed letter -- anyone who's system it passes by can see it so easily that there really is no expectation of privacy.

• If you want to send confidential material through physical mail, you put it in an envelope -- otherwise, lots of people can see it.
• If you want to send confidential material through email, you encrypt it -- otherwise, lots of people can see it.

Why more people don't use encrypted email boggles my mind.

Re:Difference between phone & email

[Anonymous Coward]

Why more people don't use encrypted email boggles my mind.

I'd encrypt all my email, but then none of my friends and family would be able to read it. Even if they had the technical confidence (which they don't), 90% of them are using Yahoo! mail or similar which don't offer an easy way to encrypt mail.

Re:Difference between phone & email

[meta-monkey]

Why more people don't use encrypted email boggles my mind.

Probably because it requires every person you send email to or receive email from to be aware of the encryption system and how to use it, and most users of email are technically illiterate? I, for one, don't want to have to try to teach my parents how to use PGP so the government won't find out I'm planning to arrive for Christmas dinner at 2PM.

Re:Difference between phone & email

[Anonymous Coward]

I, for one, don't want to have to try to teach my parents how to use PGP so the government won't find out I'm planning to arrive for Christmas dinner at 2PM.

If you really don't want the government to know, you have many options

1. Phone, where lots of legislation will protect your call unless they have a warrant or your're the target of a warrentless tap.
   
2. Skype, where the communication is encrypted and so protected unless the government goes to skype/ebay with a warrant.
   
3. Physical mail, where there are laws protecting you, and it's kinda hard to read without the tampering being detected.
   
4. Nothing to hide -- if you're not expecially interesting to the government, noone will bother to read when you showed up at Christmas, so email is perfectly fine. The practical matter is that though your email probably ends up in archives and databases at the NSA (if your ISP is AT&T = http://www.wired.com/news/technology/0,70619-0.htm l) noone will ever see it if your life is boring enough.
   

Re:Difference between phone & email

[Fastolfe]

Why more people don't use encrypted email boggles my mind.

Is there some keyboard shortcut in Google Mail that I'm missing? People don't use encrypted mail because it's not readily available. Yes, the technology has been around for decades, but until it's pointy-clicky accessible via all of the major e-mail providers, it'll never go anywhere.

Re:Difference between phone & email

[Anonymous Coward]

Phone, where lots of legislation will protect your call unless they have a warrant or your're the target of a warrentless tap.

Although everyone these days seems to be the target of a warrant-less tap. Sure, it won't hold up in court, but you may never see a court.

Skype, where the communication is encrypted and so protected unless the government goes to skype/ebay with a warrant.

...except that the posters' parents are probably not using Skype.

Physical mail, where there are laws protecting you, and it's kinda hard to read without the tampering being detected.

Except if you have a really bright light and decent software to pull apart the folded layers of letters.

Nothing to hide...

Right now the bar may be set fairly high, but in the future, the fact that I am going home for Christmas may used as justification to persecute me. Worse, if the data is saved, it can be used against me in the future. "Nothing to hide" is just a euphemism for "doing right now what the government currently says is okay right now".

Re:Difference between phone & email

[n00854180t]

Correction to number 4: If any of your data happens to cross AT&T's pipes. Having AT&T as your ISP of course would put you at risk, but since so many ISPs in the US use AT&Ts pipes, many such would be vulnerable to illegal NSA spying without having AT&T directly affiliated. Traceroute for the win.

Re:Difference between phone & email

[Artifakt]

4. Nothing to hide -- if you're not expecially interesting to the government...

This is the one you CANT pick as an option. People have ended up on government watchlists for incredibly dumb reasons, such as having the same last name as another person, or being photographed in the background at a public event. Unless you know of a way to change your name to one that no one else will ever commit a crime under, or how to never be near where anything of government interest will happen, there is no guarenteed way to do option 4. Since either of those examples would take being able to predict the future, being 100% successful at it would be required - the government would be very interested indeed in a 90% successful psychic if they could catch one.

Recent studies on riots have shown that probably as many as 3 out of 4 people involved are just trying to slip away from the crowd, but want to do it gradually and casually because they fear pushing and shoving against the flow will draw the mob's attention to themselves. That fact alone means that there are lots of people currently on government watchlists who were effectively innocent of any intent. Even if we assume the police tend to concentrate on the more active leaders in a mob scenario, they are not going to be nearly 100% successful at singleing them out (if they were, they would have understood how many people just get tangled up in a riot many years ago, and we wouldn't have needed the studies).

Re:Difference between phone & email

[nick_davison]

>> Why more people don't use encrypted email boggles my mind.

Probably because it requires every person you send email to or receive email from to be aware of the encryption system and how to use it

I for one support all spammers encrypting their emails, even if it means I don't know how to then read them. Hell, especially if it means I can't then read them.

It may be the government's greatest tool for defeating terrorists using encryption:
1. Legally require encryption on all spam.
2. Watch every spam filter on earth say, "It's encrypted... SPAM!"
3. Watch everyone on earth uninstall the now utterly useless encryption tools or disable their spam filtering to the point where their actual evil terrorist doings are so burried in spam they can't carry out an attack anyway.

Re:Difference between phone & email

[illuminatedwax]

I taught my parents how to send and receive encrypted mails using SquirrelMail's GPG plugin with no problem. It's not hard to understand.

Re:Difference between phone & email

[Lord Kano]

I, for one, don't want to have to try to teach my parents how to use PGP so the government won't find out I'm planning to arrive for Christmas dinner at 2PM.

But how's your dad supposed to send you porno?

LK

Re:Difference between phone & email

[slaida1]

I, for one, don't want to have to try to teach my parents how to use PGP so the government won't find out I'm planning to arrive for Christmas dinner at 2PM.

What, sending 4096byte block of, um.. digital signature, is too much asked? It only takes one program to include that randomized garbage block which will or will not contain the actual encrypted message. But eavesdroppers will never know that, will they? ;) And when you really need to send something, then you encrypt it into that block. Or send photos with random noise dithering, just remember to apply the dither filter again for every copy.

The point is to make them guess and also to introduce a standard container to emails like envelope is for snail mail.

Re:Difference between phone & email

[meta-monkey]

That sounds great and all, but until it's built-in to Outlook and Mail and Eudora and Gmail and Yahoo and Hotmail and everything else, where all you have to do is click a box that says "Encrypt My Email" it's not going to happen.

Re:Difference between phone & email

[pla]

Is there some keyboard shortcut in Google Mail that I'm missing?

You can (and generally should) get to your GMail account via POP/SSL (and SMTP/TLS for sending). You can then access it from a properly configured Thunderbird (such as the highly recommended Portable ThunderBird 1.5, the version with GPG and Enigmail pre-installed - Skip 2.0 for now, though... It ate quite a few messages before I noticed).

And if that takes too much effort, stick with your Yahoo or MSN email, and just don't worry about privacy - Big Brother loves us all and only ever acts in our best interests.

E-mail is not normal mail.

[Anonymous Coward]

It is information sent across a public internetwork for every gateway and SMTP server in between to see. Making reading others's E-mail illegal is like making listening to a conversation using megaphones illegal.

Does the question of "right" matter?

[Sloppy]

The question of whether or not they have the right to do that, may be somewhat interesting in some theoretical way. Go ahead and debate it, law students. But ultimately, it is irrelevant.

They have the capability. And it's not just the government -- lots of people have the capability. Your email can be easily intercepted and there's little you can do to prevent that, and furthermore, you're not going to know when it happens. Make it illegal, and it will still happen.

So, given the reality that is imposed upon you -- a reality that no legislation or court, no liberal or conservative party, will ever be able to even influence -- what are you going to do about it?

Let them read ciphertext. Debating the legality of plaintext intercepts is a waste of time.

Re:Does the question of "right" matter?

[PainBot]

It is relevant, because then proof obtained in this way will not be accepted in court.

E-mail as court evidence

[westlake]

Even if your e-mail is stored on another individual's computer seized under a search warrant, the government cannot use this information as evidence.

From the U.K., but short and to the point:

Email content is treated in the same way as verbal and written expressions and statements and is admissible in a court of law. It is a common misconception that email messages carry less weight than letters on headed notepaper.

The problems are only likely to arise if your opponent disputes the authenticity of what you produce. The same applies to traditional letters - i.e. it is only when their authenticity is questioned that proof becomes a problem.

If the authenticity of an email produced in court is questioned, be prepared to provide evidence of the audit trail showing where the email originated and the route by which it was sent to your computer. The audit trail would show if there had been any opportunity for someone to interfere with the email as they are usually sent between several servers before they reach their destination.

Email have raised problems for the courts. In the past, evidence would invariably take the form of an original signed document and if that was not available then a copy of that signed document could be substituted. The signature would be the key to proving the authenticity of the document (of course, the argument can still be made that the signature is a fake). The difference with email is that there is no such thing as an 'original' since the print-out is the end result of a technological process. It is the audit trail showing that process which can be used to persuade the court of the print-out's authenticity if this is challenged by your opponent.

Forensic computing services can help if it becomes necessary to prove that a hard copy of an email produced in court is genuine.

Email as court evidence

And if encrypted?

[Anonymous Coward]

Suppose they are encrypted. Then is the feds allowed to read them? Of course, if it is encrypted, AND the feds have broken the scheme, then you have just signaled what you think should be private. IOW, you just told them where the needle is in the monster haystack. So my question is, once you have set a policy for allowing the feds to come into your private systems, then why not your private house? Or your private bedroom? What is the difference? Offhand, I do not think that this admin really cares. And I would guess that future admins will care even less.

I apologize.

[mmell]

I thought your post was suggesting that you feel this is right; I see now that you are merely asserting that this is how it is.

Sorry 'bout that, Chief!

Violating the SPIRIT of the law

[Anonymous Coward]

I think it's fairly obvious what the existing law intends to protect. What the prosecutor did is within the letter of the law, but is in violation of its spirit.

Because, "BOOOO!"

[Anonymous Coward]

Why we have given up on these principles and accepted universal wiretapping for newer technologies, I cannot imagine.

Dagnabbit you dang fule! They's terrists with atum bombs hidin' in ever coner of thuh cornfield and they's out to git us cuz they hates are freedumb! Thank Jay-sus the gubbermin' is are frend 'n' pertecter. What er yoo, sum kinda weerd commie librul hippy?!

Email should be protected.

[insomniac8400]

If it's not protected the same as mail in your home, that is not right. People shouldn't need to know how to run their own mail server to have their mail protected.

Re:Email should be protected.

[Todd Knarr]

It was protected as well. But it wasn't in his home, it was in the homes of the people he sent it to. He's claiming not that the government shouldn't be able to search his mail, but that the government shouldn't be able to search the mail of the people filing complaints about him even if they give permission for the search. In short, he's claiming that mail in someone else's mailbox belongs to him and he can control access to it. Which is wrong.

It was spam anyway!

[cashman73]

From the article: "Now that law, the Stored Communications Act of 1986, is being challenged in federal court in Ohio by Steven Warshak, a seller of "natural male enhancement" products who was indicted for mail fraud and money laundering after federal investigators sifted through thousands of his e-mails."

So, they guy sent out mass emails to more than recipient (probably millions), and he's complaining about lack of privacy. Heck, several people he sent the emails to probably work for some branch of the government! What a tool!

I hope...

[garion888]

This guy is screaming Yahoo from his jail cell as bubba spams his ass...

Re:I hope...

[Anonymous Coward]

This guy is screaming Yahoo from his jail cell as bubba spams his ass...

I'm hoping Bubba used the spamvertised products, and that they worked extremely well.

Hardly New

[Anonymous Coward]

This is not the slightest bit new.

As a matter of black letter law, the 4th Amendment does not protect "what a person knowingly reveals to the public." (Katz) Previous cases have held that your garbage, your bank records, and even phone records may be obtained without a warrant, provided that they are obtained from the third parties with which you are dealing and not your home.

There is federal statutory law on email (though I don't recall the precise citation) that treats email as a hybrid between telephone conversations and documents. To read your email in real-time as it comes in, the government requires a warrant. If you leave it on your ISP's mail server for longer than some period of time (not sure how long, but it's something longer than an hour and less than a month), then the email is treated as a document and can be obtained like any other record.

Normally a warrant to search a house, tap a phone or intercept email requires probable cause. However, this requirement is different if "a substantial purpose" of the investigation is foreign intelligence surveillance. In that case the warrant can be obtained with something less than probable cause under FISA as modified by USA Patriot Act (though there are still pretty stringent requirements; the gov doesn't get carte blanc to snoop on anybody)

Long story short, if you don't want it read, don't leave it on somebody else's server and don't do anything that would convince a judge that you pose a threat to the country.

but that's not how email works.

[goldcd]

You're not physically sending anything. You're connecting to an smtp server and asking them to pass the message along for you.
Think of it like you sending a letter to a friend, asking them to transcribe it for you and then pass it onto another person - and then suing your friend for reading the message as they transcribed it.
When an email leaves your own network, you're relying on civic minded people to pass it along for you. Back to the snail mail analogy, if your package is lost in the post you can claim your money back as they courier had a duty of care, if your email goes missing 'tough'. It's up to each hop to determine whether or not they want to pass it on and they can do with your email as they wish.

Why not to use gmail, Yahoo! mail, etc.

[Flexagon]

This is very old news.

More importantly, it's a good reason to avoid all e-mail hosting services like gmail, Yahoo! Mail, etc., until this is resolved.

Never have mod points when I need them.

[wiredog]

Pity. One of the more insightful comments on this story.

Spammer

[pluther]

Smart of them to go try this out against a spamming fraudster (or is that fraudulent spammer)?

Certainly there is easily enough evidence out there to obtain a search warrant.

And it's not like search warrants are difficult to obtain.

The only reason I can think of not to bother in this case would be because someone wanted to set a precedent. And who better to set one against than someone hated by everyone?

Laws need to be updated

[Wiseazz]

The "Stored Communications Act of 1986" clearly needs to be updated, which is another example of why we need to keep a close eye on technology-specific legislation. Today's good idea becomes tomorrows loophole (for gov and criminals alike - both of which will take full advantage without thinking twice).

But the one thing that has never changed since the dawn of written communication is this: If you don't want something read, then don't write it down. Especially if you're laundering money from the insecure and poorly-endowed... because that's just wrong!

Re:In Soviet Russia... OT

[Oriumpor]

Looking around it may not seem that bad, but since I've grown up with the following expectations I'll just repeat them:

1. While enrolled in education, everything I do or say on a campus is subject to "restricted" rights
2. An animal can determine whether or not there's a 4th amendment allowance to search me
3. I can be told to take medication or be placed on the dole (if 'diagnosed' with a 'mental condition')
4. My phones are probably tapped at some point in a domestic communication, and are definitely tapped at least once on the way out of the country (have been since the 70-80's see:echelon)
5. My internet communication is probably tapped domestically (if I gotta go through Mae west etc or any SF pop there's a good chance) and internationally at least once there's a sniffer present.
6. My electricity bill is public information (used as a 4th amendment allowance to search homes)
7. The expectation of anonymity of a person is no longer allowed (you MUST provide your identity if the secret^H^H^H^H^H^H police ask for it.)

Need I continue? I'm sure I could, but it just gets depressing after that point... did I say depressing? I mean It's great that this is happening! Why wouldn't I want the world to be a "safer" place?

anonymous networks...

[mangledspine]

In cases like these, you might want to give AnoNet a try.

Not for webmail

[Chemisor]

Considering that most of my correspondents use webmail of some kind, encryption is simply not practical. I would dearly love to encrypt everything by default, but only people using standalone mail applications can decrypt, and the current trend is unfortunately toward webmail, so the situation is likely to get even worse with time.

Re:Not for webmail

[SirGarlon]

You could encrypt plain-text files, zip/gzip them and send them as attachments.

Re:Not for webmail

[Chemisor]

> You could encrypt plain-text files, zip/gzip them and send them as attachments.

Oh, please! So that people could download them, extract them, and run gpg on them? Be serious; nobody will want to do that on a regular basis.

Re:Not for webmail

[SirGarlon]

And people want to use webmail on a regular basis? I'm not saying encrypt everything you send. I'm saying, if someone wants private communication, he can do something about it instead of just whining. The tools are out there.

Re:Not for webmail

[Chemisor]

> And people want to use webmail on a regular basis?

Evidently quite a few people do. I can't understand why, but I'm not them.

> if someone wants private communication, he can do something about it instead of just whining

Well, duh! My point is not that it is impossible, but that it is inconvenient. For most messages neither I nor the recepient cares whether somebody reads it. If I could use encryption without the inconvenience, like if we both were using Mozilla mail with enigmail, then I'd always encrypt. But the way things are now, with everyone going to webmail, convenience of plaintext far outweighs the benefits of encryption for most messages.

Encryption!

[Anonymous Coward]

Was there ever a more exemplar case for using encryption on email? People think that their correspondence is "not important enough" to encrypt. I say that if you wouldn't write it on a post card for the world to read, put in in an encrypted envelope.

Encryption is like condoms: use it or get VD^H^Ha subpoena.

(Posting anon for effect)

Re:Encryption!

[The Cisco Kid]

This IS NOT about someone private LOVE LETTERS.

This is about spam. advertisements. You REALLY think a spammer is gonna actually encrypt their advertisements so you cant read them??? (well, beyond the misspellings and obfuscation they already use to avoid filters)

Doesn't even apply here!

[RvLeshrac]

You've all (or at least the vast majority of you) failed to notice that this case does not even invoke this act.

If you send me a letter describing in great detail how you intend to blow up with on , that letter then becomes my property. I can pass it along to law enforcement agencies as I see fit, etc.

If you send me spam, I can then pass that spam along to law enforcement agencies as I see fit. If you give me a 3 lb brick of black-tar heroin, I can do the same.

This act affects electronic messages which are stored by a recipient and then siezed, not messages which are voluntarily submitted to law enforcement. There is very little you can do if someone else legally obtains evidence against you and then hands it over to someone else, save for a lawsuit against the individual in question.

That said, the defendant in this case (The US Government) will be defending this act to the end, regardless of whether or not the act violates personal liberties - it DOES appear to, but again, this act has absolutely no bearing here.

Re:Doesn't even apply here!

[RvLeshrac]

Whoops, I inadvertently tagged when I should have zigged.

Should have read "If you send me a letter describing in great detail how you intend to blow up (insert_famous_monument) with (insert_method) on (insert_date), that letter then becomes my property. I can pass it along to law enforcement agencies as I see fit, etc."

Yet Another Reason...

[eno2001]

...why I say; run your own mail server. I do it. I've done it since 2001. I've had too many instances of incompetence at ISPs and large mail service providers losing my mail and not restoring it. Sure, they can read it on the way in or out, but then it's a different beast than actually getting onto my system without a warrant. Plus I have the added benefit of having a private mail system that is not accessible to anyone on the net as it's on a darknet used by friends and family. Simple solutions really. Until someone decides to make them "illegal".

Re:Yet Another Reason...

[The Cisco Kid]

As near as I can tell, they didnt read the spammer's email in HIS mailbox, they read it in the *recipients' mailboxes*. I'm sorry, but if you send ten thousand copies of an advertisement to ten thousand random email addresses, you have absolutely no right to keep it private. You do have a right to become someones new girlfriend in a federal pen.

Re:Yet Another Reason...

[eno2001]

Well in that case... sure a spammer deserves to be bubba's babe. All I'm saying is that I don't want people reading my mail without my knowledge via surreptitious means. That's where the darknet comes in. I'm hoping that someone will eventually release a full darknet kit that can be used by anyone to establish private networks over the internet. It would cut down on lots of problems and give people a lot more freedom and power to publish unfettered.

Re:Yet Another Reason...

[The Cisco Kid]

And yet, if you send email, even from your 'darknet' to a standard old plain Internet email address (such as Yahoo), you relinquish any right to prevent the recipient, or anyone else they authorize (say their ISP, per its TOS) from reading it.

This is just another form of 'my server my rules', which is oft repeated when dealing with spam, as a way of suggesting that no one has any right to force the owner of a piece of hardware (wether it be a server or a client machine) to accept any communication it chooses, based on any criteria it choses.

Basically, the ISP owns the hardware, and if you either contract with them to receved and store email that is for you, or you send email to someone else that has, any right to privacy of that stored email is entirely subject to the terms of service under which that ISP provides that service.

If you want to own your own hardware, and have a private email network that is only accesible by authenticated encrypted connections, and only give access to it to persons whom you trust, feel free, and the govt will need a warrant to access it, if they choose.

Common Carrier (was: Re:What part of)

[Nefarious Wheel]

And claiming common carrier status for ISPs when no such law has been passed

Good one! That's a well reasoned, and well informed argument and answer.

So, it's an easy step from here to say "let's pass a law that recognizes ISP's as common carriers".

Write your congresscritter.

Re:Common Carrier (was: Re:What part of)

[Marxist Hacker 42]

So, it's an easy step from here to say "let's pass a law that recognizes ISP's as common carriers".

And I have NO objection to that, and in fact encourage it. I didn't say I LIKED the status quo!

Re:Common Carrier (was: Re:What part of)

[Anonymous Coward]

It is already a matter of judicial precedent that ISP are common carriers. Laws like the DMCA reinforce the notion. No specific law saying "ISPs are common carriers" is necessary. The government does not have a right to read my emails without a warrant. If the government wishes this exception to the Fourth Amendment then they need to get a law passed (actually an amendment to the Constitution) making it so. Until then, my communications not uttered in public and not addressed to the government but instead sent to a specific non-governmental recipient are to be private until their receipt.

Re:Common Carrier (was: Re:What part of)

[Marxist Hacker 42]

Not according to wikipedia. I suggest posting under your login instead of AC and providing links

Re:Common Carrier (was: Re:What part of)

[Anonymous Coward]

I don't have a login (at least not one I have used in about 7 years), but linking to Wikipedia to support your proposition is dubious at best. From your own article, the definition of a common carrier is an organization that transports persons or goods, and offers its services to the general public. ISPs do fit this definition. If ISPs do not fit this definition and it is in fact okay for the government without any warrant to look at your communications (as stored by ISPs in the process of transporting them), then it is also okay for your ISP to sell your communications to the highest bidder or just post it publicly for all to see. After all, you have no expectation of privacy when sending your email message through an ISP, right? I, like most people, do expect privacy when sending my email through an ISP. An ISP is, after all, acting as a common carrier. Even if the FCC, which is not empowered by congress to make such a determination, would not agree.

This is an interesting article http://www.potaroo.net/ispcolumn/2002-01-uncommon. pdf.

Re:Common Carrier (was: Re:What part of)

[Marxist Hacker 42]

If ISPs do not fit this definition and it is in fact okay for the government without any warrant to look at your communications (as stored by ISPs in the process of transporting them), then it is also okay for your ISP to sell your communications to the highest bidder or just post it publicly for all to see.

And thus the basic business model behind GMail- give you a ton of space on THEIR servers so that they can mine YOUR data and target you for advertising. That's why- if you read the whole article- ISPs have been fighting against becoming common carriers, so that they can sell your communications to the highest bidder (or at least, the information therin that is relevant to that highest bidder).

After all, you have no expectation of privacy when sending your email message through an ISP, right? I, like most people, do expect privacy when sending my email through an ISP. An ISP is, after all, acting as a common carrier. Even if the FCC, which is not empowered by congress to make such a determination, would not agree.

Then write your congress critter to change the law so that the FCC is empowered by Congress to make a determination. Until then, you're pretty much hosed on this issue.

I agree with you that we SHOULD be able to trust ISPs as common carriers- but the fact of the matter is, we can't.

Re:Common Carrier (was: Re:What part of)

[tqk]

And thus the basic business model behind GMail- give you a ton of space on THEIR servers so that they can mine YOUR data and target you for advertising. That's why- if you read the whole article- ISPs have been fighting against becoming common carriers, so that they can sell your communications to the highest bidder (or at least, the information therin that is relevant to that highest bidder). Not true. ISP's have been fighting against CC status because that would burden them with obligations they'd rather not assume. CC status would burden them with responsibilities to you and make them responsible for anything going through their pipes. They'd much prefer you, the downloader/file sharer, were sued by the RIAA instead of themselves for letting you do it.

And I would argue

[Sycraft-fu]

That e-mail doesn't really need the same protections. The thing is with e-mail, or indeed with any computer based communications, a solution exists: end to end encryption. When there's something you don't want someone to see, encrypt it at the sending computer and decrypt it on the receiving computer. Trust nothing in the middle. I basically assume that anything I send in cleartext my ISP can read if they feel like. Will they? No probably not, but they can and so I don't send stuff in the clear that I would mind if they saw. If it needs protecting, it's encrypted. For example I never access any system at work over an unencrypted link.

I'm not sure I'd want laws protecting it since it would likely include sysadmins as well as the government. It'd be a major problem at work if I couldn't access someone's e-mail. There are numerous occasions when a problem requires us to get in to someone else's e-mail box. It's all legal, the systems are owned by the university and we are the designated support. However if there were a privacy law saying we couldn't, that'd be problems. Or hell, imagine on a personal level. You run a little server that some friends have accounts on, including e-mail. Suppose it was similar to postal mail (federal felony) for messing with it. You'd want a situation where cating the wrong file could be a felony?

As I said, I think the answer lies in the technology. Since it is easy to use end-to-end encryption, it should be incumbent on the user to do that when the data is something that they don't want a third party to see.

Re:And I would argue

[xappax]

Since it is easy to use end-to-end encryption, it should be incumbent on the user

If it was really easy to use end-to-end encryption, that might be a reasonable expectation. But it's not really easy. The proof is that almost nobody encrypts their emails today, but if you told them that strangers were reading their emails, they'd be unhappy about it.

Compare the email situation with many other security precedents. There are phone-tap detecting devices out there that could be used to prevent eavesdropping on phone calls. It wouldn't be too hard to phone users to employ these, but there's also a law which says you can't tap people's phones (at least there used to be!). It's reasonable to expect you to lock your door, but there's also a law which says you can't trespass in someone's home, even if they don't have a lock. It's a good idea to learn self defense and carry a weapon if you're going to an area where you might be accosted, but there's also a law which says people can't attack you.

Personally, I don't trust the government to protect any of the rights they supposedly guarantee me, but that doesn't mean that they shouldn't guarantee them. At least with a legal guarantee I have some kind of recourse, and there's a deterrent for the law-abiding people or officials who might otherwise try to snoop on me.

I agree that we need easier and more powerful privacy technology, but it'd be awfully nice if I didn't have to defend my privacy by force all the time.

Re:And I would argue

[Vellmont]

Suppose it was similar to postal mail (federal felony) for messing with it. You'd want a situation where cating the wrong file could be a felony?

I don't see how making e-mail regulations similar to postal regulations would mean that cating the wrong file would be a federal felony. I assume that postal regulations allow mail to be read for normal post office operations. If a letter is torn open and some guy reads a few sentences by accident, I'm pretty sure the guy who read the few lines of it isn't going to jail.

On a similar note, I'm pretty sure it's illegal for a postal employee to open up your mail and start reading it without a valid reason. It should be a similar deal for you to read your friends email without sufficient administrative reason.

Re:And I would argue

[misleb]

If it was really easy to use end-to-end encryption, that might be a reasonable expectation. But it's not really easy. The proof is that almost nobody encrypts their emails today,

For fun I opened up 'Help' in Apple Mail and typed in "encrypt" in the search. The first result was detailed instruction on how to generate a certificate and encrypt email. If Apple officially supports it, how hard can it be? I dunno, maybe it only works correctly with other Mail.app users, but it seems pretty straight forward to me.

but if you told them that strangers were reading their emails, they'd be unhappy about it.

But would they be unhappy enough to do something about it? Probably not. People are often "unhappy" about things they hear, but how often do they do anything about it. Encrypting email really isn't that hard, but it is an extra step. It is an extra step that most people don't bother with.

Speaking for myself, I know how to encrypt email. But why should I bother?

-matthew

Re:And I would argue

[Agelmar]

Does it tell you how to get someone else's public key? Does it walk you through how finding out if the key on pgpkeys.mit.edu is really *my* key or someone else's? And please, do tell me how the hell I'm supposed to get the public key for my bank - any of the five I have a relationship with. Try calling up Bank of America and telling them that you want to send them an email about your account and need their PGP key. If you're lucky you might get someone who has a clue after five transfers, who will just tell you that "Sorry, this is not supported." That's if you're lucky. Now try to get me a key for DeutscheBank. Or, if you really want an exercise in futility, try to tell me how to get a key for Bank of .

Encryption is all well and good, and if you look on pgpkeys.mit.edu you will find my key. I drank the kool-aid a long time ago, but I certainly don't consider encrypted email to be a solved problem. Keyservers, as they are today, are basically a hack. There's no guarantee that you have the correct key. Sure, we could start reading fingerprints and hashes to each other over the phone, but that's far from ideal, and still doesn't solve the problem that if Alice doesn't already know Bob, calling who she believes to be Bob is really not doing all that much to verify any sort of real-world identity if she found Bob's phone number online (the same place she found Bob's key).

The fact that there's a "help" topic does not mean it's a solved problem.

Re:And I would argue

[vadim_t]

PGP needs a good infrastructure of path finding servers.

Getting your key is good, but you need to find a path of trust between your and their key to make it safe. This is something the servers should be doing. With a keyserver this is nearly impossible.

There are a couple of path finders out there, but unfortunately this idea doesn't seem to be catching on as much as it should. This ought to be a feature of any PGP-style program.

Re:And I would argue

[gnomeza]

And the path of trust is only as strong as the weakest link in the chain, not so?

Re:And I would argue

[xappax]

But would they be unhappy enough to do something about it? Probably not.

It's true - computer users are often lazy when it comes to security, and it drives me crazy. But, I'm not so bitter and aloof that I would say that users should be punished for failing to secure their data. We're computer experts here, so it seems like a fairly small undertaking for someone to encrypt their email, but there are a lot of people who have just barely grasped how to send email in the first place.

No matter if these people are lazy, uneducated, or stupid, I don't think that the "right to learn about and use encryption" is a sufficient guarantee of our basic "right to privacy".

You shouldn't have your privacy violated just because you were too lazy or inept to figure out how to use encryption, just as you shouldn't get your ass kicked just because you don't know Kung Fu.

Re:And I would argue

[vadim_t]

Obviously.

The problem with PGP/GPG is that as delivered to the user you can only use it to send mail to your friends. Trying to find a path to somebody you haven't met is very hard, yes that's the whole point of the web of trust!

Alice trusts Bob, who trusts Carol who trusts Dave.

The problem is that when Alice sees Dave's key she has no idea that by just fetching Carol's key she could establish a path that would provide some degree of security. Otherwise she just ends up encrypting to a key that might or might not be Dave's.

This situation makes the usability of PGP a lot lower. Here's a simple task: Verify the signature on the gnupg or Linux kernel source code. Thanks to a path finder I found that indeed I have an usable connection. Without it, all I'd get would be about as good as a MD5 sum. This is a real problem, I know several people who know perfectly well how to use PGP but don't, because all it's good for is to send mail to the friend next door.

By using a path finder I found that I actually can trace several paths to Richard Stallman, should I ever have the need to mail him. Before that, I could only reach maybe 3 or 4 people in a secure way.

Re:And I would argue

[jp10558]

I don't know about your banks, but mine (HSBC USA) doesn't do much of anything by e-mail for all sorts of security reasons. They have implimented something called "Bank Mail" which is a rudimentary webmail client INSIDE their WebBanking interface. That seems reasonably secure to me, and a logical solution to the problem for banks.

Social engineering

[siriuskase]

If they can persuade someone who has access to the email server to share it with them without a warrant, then it is as legal as if they persuaded your spouse to allow them to look at stuff in your house without a warrant. This has been done, and challenged as an invasion of privacy, but I'm not sure what the outcome was.

A classic "standing" problem...

[bouis]

This sounds like a pretty simple 4th amendment issue, phrased as:

Is it a "search" as to you under the 4th amendment if the government reads your e-mail off the server it's stored on?

If it is a 4th amendment search, the government needs a search warrant or some "reasonable" excuse to make the search legal. If it's a search and it's not "reasonable," it's a Constitutional violation, and the evidence would have to be excluded under the judge-made "exclusionary rule." But there's the "as to you" part, as well. The courts won't let you assert someone else's 4th amendment rights; if they illegally kick in Joe's door down the street and find a bundle of dope with your name, address, and social security number printed on it, the government can't use it against Joe, but well, you're shit out of luck. Usually.

Once upon a time the courts had a fairly elaborate "standing" analysis, but ever since 60s when the 4th amendment stopped meaning what it says and started applying to "a socially reasonable expectation of privacy," the analysis is a little more complicated. Going back to the example above: would you have an expectation of privacy that society would find reasonable in keeping your drugs in Joe's house? The courts would say no-- first of all, it's dope; and second, you handed it over to a third person; for all you know, Joe could take your dope and run it straight to the police.

But the Courts have made it more complicated. If you're spending the night at Joe's house, then you, as an overnight guest, have a "socially reasonable" expectation of privacy. But if you're just there for a drug deal, you don't. The question in this case boils down to: do you have an expectation of privacy, that society considers reasonable, in your e-mail when it's stored on a public server?

There's really two ways you can go about answering this question: the first is what I guess you'd call an analyticial analysis: by storing your e-mail on a server, how easy is it for someone, anyone else to read it? How often does that happen? The second would be a values analysis: what do people use e-mail for? How private is it? How important is it to keep the government from reading your e-mail? Etc.

But you'll have to make up your own minds as to this question. I think the "reasonable expectation of privacy" analysis is bunk, and that the 4th amendment was never intended to protect mail or e-mail. But then I'm something of a strict constructionist myself.

Re:A classic "standing" problem...

[Kjella]

The question in this case boils down to: do you have an expectation of privacy, that society considers reasonable, in your e-mail when it's stored on a public server?

It's a personally addressed communication in a private mailbox only normally accessible using a username and password, which to me translated quite well to a locked physical mailbox. Just because the postman has a master key to drop off big packets doesn't make it public, nor whether I rent or own the mailbox.

Re:A classic "standing" problem...

[bouis]

The flaw in your reasoning is that the USPS is a public entity, an arm of the government. There are also lots of strict laws governing how the mail may be handled, etc. The only people with the "keys" are government employees, or citizens willing to risk becomming someone's bitch in a federal prison.

E-mail on the other hand is practically unregulated, and if someone from your ISP wants to read your e-mail, well, there's nothing stopping them. You've essentially made your e-mail available to an unknown number of people, who can legally read it or copy it at any time they wish, completely without your knowledge.

But the truth is that court rulings on this are all over the place. The entire idea of an "expectation of privacy" that "society" (read: 5 elderly Supreme Court Justices) finds to be reasonable as a Constitutional doctrine is complete and utter bunk. Not only does it subject a supposedly non-political branch of government to extreme political influence, corrputing the fairness of individual cases, but it leaves the average man wondering whether he can rely on any court precedent established by a previous court. Look at the absurd results the policized Supreme Court has reached:

The commerce clause: the federal government has the power "to regulate Commerce . . .among the several States." This means the federal government can... tell you that you can't grow wheat on your own farm for your own personal use. In fact, it means the government can do anything it wants so long as it can connect it to "interstate commerce." For example, you want to chew gum? Well, the gum is made in another state. What if you make your own gum? Well, the federally-regulated gum manufacturers' business might be hurt if too many people made their own. So, no gum for you.

"Congress shall make no law regarding an establishment of religion" - This means you can't display the 10 commandments in a courthouse.

"the right of the people to keep and bear arms shall not be infringed" - This means... nothing.

Re:A classic "standing" problem...

[Serveert]

What is interesting is Scalia decided that the commerce clause was a good thing when it came to making medicinal marijuana illegal.

Talk about judicial activism. "Commerce clause is terrible.._unless_ it supports my ideology".

But I agree the commerce clause is ridiculous and has been twisted to allow for any senile supreme court judge to use at his or her whim to suit ideology and political beliefs.

Re:A classic "standing" problem...

[bouis]

It's definitely true that Scalia deviates from the meaning of the commerce clause, but you're unfairly attributing "commerce clause is terrible" to him, since he's never said anything of the sort. With the exception of Thomas, none of the Justices, conservative or liberal, have been willing to take on the commerce clause in any meaningful way. Even the "conservative" Justices read the commerce clause very broadly, and haggle with the liberals over very minor details.

For a real Constitutional take on the commerce clause you have to look to Thomas...

The majority's treatment of the substantial effects test is rootless, because it is not tethered to either the Commerce Clause or the Necessary and Proper Clause. Under the Commerce Clause, Congress may regulate interstate commerce, not activities that substantially affect interstate commerce-any more than Congress may regulate activities that do not fall within, but that affect, the subjects of its other Article I powers. Lopez, supra, at 589 (Thomas, J., concurring). Whatever additional latitude the Necessary and Proper Clause affords, supra, at 9--10, the question is whether Congress' legislation is essential to the regulation of interstate commerce itself-not whether the legislation extends only to economic activities that substantially affect interstate commerce. Supra, at 4; ante, at 5 (Scalia, J., concurring in judgment).

[...]

The substantial effects test is easily manipulated for another reason. This Court has never held that Congress can regulate noneconomic activity that substantially affects interstate commerce. Morrison, 529 U.S., at 613 ("[T]hus far in our Nation's history our cases have upheld Commerce Clause regulation of intrastate activity only where that activity is economic in nature" (emphasis added)); Lopez, supra, at 560. To evade even that modest restriction on federal power, the majority defines economic activity in the broadest possible terms as the " 'the production, distribution, and consumption of commodities.' "7 Ante, at 23 (quoting Webster's Third New International Dictionary 720 (1966) (hereinafter Webster's 3d). This carves out a vast swath of activities that are subject to federal regulation. See ante, at 8--9 (O'Connor, J., dissenting). If the majority is to be taken seriously, the Federal Government may now regulate quilting bees, clothes drives, and potluck suppers throughout the 50 States. This makes a mockery of Madison's assurance to the people of New York that the "powers delegated" to the Federal Government are "few and defined," while those of the States are "numerous and indefinite." The Federalist No. 45, at 313 (J. Madison).

        Moreover, even a Court interested more in the modern than the original understanding of the Constitution ought to resolve cases based on the meaning of words that are actually in the document. Congress is authorized to regulate "Commerce," and respondents' conduct does not qualify under any definition of that term.8 The majority's opinion only illustrates the steady drift away from the text of the Commerce Clause. There is an inexorable expansion from " 'commerce,' " ante, at 1, to "commercial" and "economic" activity, ante, at 20, and finally to all "production, distribution, and consumption" of goods or services for which there is an "established ... interstate market," ante, at 23. Federal power expands, but never contracts, with each new locution. The majority is not interpreting the Commerce Clause, but rewriting it.

(emphasis added)

Re:A classic "standing" problem...

[Serveert]

but you're unfairly attributing "commerce clause is terrible" to him, since he's never said anything of the sort.

He didn't say those words exactly but he has said these words: "our wardrobe of ever-changing negative Commerce Clause fashions"

Then there's this ruling which he agreed with:

Rehnquist explained that the need to distinguish between economic activities that directly and those that indirectly affect interstate commerce was due to "the concern that we expressed in Lopez that Congress might use the Commerce Clause to completely obliterate the Constitutions distinction between national and local authority."

A decade later he loves the commerce clause when it comes to medicinal marijuana and even Oregon's physician-assisted suicide law! He twsits in the wind to support his ideology.

So again, he seems more on the side of judicial activism than anything. Thomas has been more consistent. Thomas is one of those beacons of light we can all be proud of, we just need more justices like him. He represents libertarian thought while Scalia represents right wing conservative political thought, much like the judicial activists he derides.

Maybe if we perfect cloning we can clone Thomas.

Re:A classic "standing" problem...

[bouis]

He didn't say those words exactly but he has said these words: "our wardrobe of ever-changing negative Commerce Clause fashions"

The "negative" commerce clause is the logical implication that, if the power to regulate interstate and foreign commerce goes to the federal government, then the states, by implication, can't regulate interstate commerce themselves. What Scalia was talking about was using a broader interpretation of the commerce clause to strike down [i]state[/i] laws, through extremely attenuated arguments-- for example, if a school bans chewing gum, it affects interstate commerce because less gum is shipped to that state... therefore, states can't ban chewing gum? The liberals would say yes, at least, they would, if you substituted chewing gum, for something more popular with liberals, like, say, gay sex toys.

Morrison deals with a commerce clause case that goes well beyond even the broader definition of commerce that Thomas hates so much. It's not inconsistent with Scalia's concurrence in Raich.

Now, that said, yes, Scalia is definitely more willing to twist his claimed beliefs to achieve a result (or, more often, to influence a decision with the 5th vote). How exactly he justifies this I don't know.

I hope Thomas lives to be a hundred, 'cause there ain't never going to be another man like him on the Court.

Re:A classic "standing" problem...

[Serveert]

The liberals would say yes, at least, they would, if you substituted chewing gum, for something more popular with liberals, like, say, gay sex toys.

Hence why the judicial activism goes both ways. The commerce clause has been twisted by everyone but Thomas to suit their belief system. If that state law dealt with say physician-assisted suicide or medicinal marijuana, all of a sudden that commerce clause isn't so negative.

Even if Clarence Thomas passes away, his ability to be consistent will live on as an example for everyone, judges and non-judges.

Nonsense.

[Erris]

if it wasn't for a set of special laws protecting the US Post Office [the government could plunder your post at will] - that same set of laws has NOT been passed for the Internet. If you want them- you need to write your congress critter.

The exact opposite is true, government needs to pass laws before they act. Moreover, you need to pass a very special kind of law to violate the US bill of rights. Wanting to do so makes you a traitor. People don't need laws to protect their rights and laws which do must be nullified by the supreme court.

Let's consider your postal analogy. If I give my physical post to a friend to deliver to someone else doesthe government has a right to read my mail? No, my friend has as much fourth amendment protection as I do. The government should no more have a right to read my email at the ISP than they have the right to read my email on my own computer. Any such "rights" have been invented by people who are ignorant of or hostile to the US Constitution.

Amendment IV

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

It's hard to argue with such simple language. Claims of "storage" or that my email is not a "paper" are second rate sophistry.

This is an economic as well as a human rights issue. A society that does not protect it's post can't do business and can not prosper.

Re:Nonsense.

[Marxist Hacker 42]

The exact opposite is true, government needs to pass laws before they act. Moreover, you need to pass a very special kind of law to violate the US bill of rights. Wanting to do so makes you a traitor. People don't need laws to protect their rights and laws which do must be nullified by the supreme court.

Unfortuneately for you- this specific topic in fact has been addressed and nyullified by the Supreme Court. You have no reasonable expectation of privacy in the public sphere.

Let's consider your postal analogy. If I give my physical post to a friend to deliver to someone else does the government has a right to read my mail?

Yes, if your friend decides to hand it to the government.

No, my friend has as much fourth amendment protection as I do.

Fourth ammendment means nothing once you publish.

The government should no more have a right to read my email at the ISP than they have the right to read my email on my own computer.

I completely agree with that should- but should is a far cry from what is. The status quo is that ISPs are not common carriers, and can do whatever the hell they want with their data that you publish on their servers.

Any such "rights" have been invented by people who are ignorant of or hostile to the US Constitution.

The Constitution was written long before computers existed, and thus Cyberspace isn't covered by the US Constitution. Sorry, but that's the way it is. Don't like it? Do something about it! Write your congress critter and get ISPs reclassified as common carriers under Article II of the Telecommunications Act!

It's hard to argue with such simple language. Claims of "storage" or that my email is not a "paper" are second rate sophistry.

An ISP is not a person by this defintion, and thus is not covered. Nor is data stored on a hard drive "houses, papers, and effects" so it's not covered either. You hit send- thus you wanted the ISP to make a copy and publish to anybody who has rights to pick up that e-mail. You VOLUNTARILY gave up your privacy right by hitting send.

This is an economic as well as a human rights issue.

Agreed. So write you congress critter to get the law changed- as I have done in the past and will do again.

A society that does not protect it's post can't do business and can not prosper.

The Internet is not currently considered the Post by any law- which is the basic problem. As for business- well, I tend to be of the mind that doing business is what causes poverty.

In other news: Prying Eye Loosens Privacy

[HTH NE1]

What part of No Reasonable Expectation of Privacy in the Public Domain don't you understand?

Oh, I understand it perfectly: "Anything that I can see unaided is not private. Anything I can see with aid of a device was never private."

When it comes to privacy, the government is a kleptomaniac.

Mod Parent up

[IgLou]

Well put!

IANAL but I also thought you can't let someone commit a crime for the purpose of convicting them on a greater crime. Like having an undercover posing as a hitman, I thought you can't let the criminal commit murder when planning it is already a crime. Just a side thought.

Anyways, there seems to be alot of focus on who owns the email when this has to do with process. If you want to tap my phone or open my snail mail you need a warrant (speaking in Canada that is) now why can't that apply to email? Why does it have to be so different all the time?

Ammendment 4 looks good to me.

[Erris]

With old-style non-electronic messages, there is no distinction between the contents of the letter and the physical letter itself. Hundreds of years of laws and general ethical principles were written based on the assumption this will always be true. Now it's not, and it's all breaking down ... Copyright has the exact same problem.

The intent of the supreme law of the land is quite clear:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

That was not made to protect pieces of paper, it was made to protect people from government intrusion.

My communications, in any form or place, are supposed to be secure. The government does not have a "right" to spend my money on agents, human or electronic, that read my mail.

Copyright is completely different. It is an invented rather than natural right, requiring positive government action to exist. My right to privacy, on the other hand, exists with no further effort. To violate my privacy, the government must waste money that it should spend on worthwhile things, like roads and national defense. Given the cheapness of electronic publication and ease of recoup through advertising, it may also be wasteful and counter productive to "encourage" publication by enforcing insanely strict copyright laws of material which is not human readable, like binary executable code. Piano rolls, for famous instance, were not covered by copyright law because they are essentially a machine part.

I don't believe the emails in question were spam

[wbean]

The article isn't 100% clear but it doesn't sound to me as though the emails in question were spam. It seems more likely that they were communications relating to his business with incriminating evidence in them. He's being charged with mail fraud and money laundering, not with sending spam.

The nose knows

[westlake]

2. An animal can determine whether or not there's a 4th amendment allowance to search me.

Would you care to guess how long, how many decades, how many centuries, the "testimony" of a dog has been admissable in court? In most legal traditions, I suspect the answer is "From the Beginning."

To resolve questions of ownership. To track a thief.

The decison belongs to the officer. But he is not obliged to ignore the opinion of a competently trained animal.

Re:The nose knows

[Anonymous Coward]

Huh? How does the behavior of an animal constitute anything more than a curiosity? Until you can get an animal to sign a legal document confirming their behavior means what their trainer claims it means, you have just not shown anything. It really does not matter what a pre-1787 pre-United States court may have found moving.

Dogs, btw, cannot testify. I live with one, and she may be a great companion. But she does not know truth from a hole in the ground. And no amount of training, even from birth, can change that.

Re:The nose knows

[westlake]

Dogs, btw, cannot testify.

You did notice that "testify" was in quotes?

Until you can get an animal to sign a legal document confirming their behavior means what their trainer claims it means, you have just not shown anything.

The courts do not make decisions based on certainties, the unknown and ultimate truths.

Evidence isn't truth. Evidence is a body of facts from which reasonable conclusions can be drawn. Evidence is not excluded simply because it is not directly obtainable through human senses.

Dogs can be trained to follow a trail. To sniff out drugs. To search for the dead.

but its okay to rifle through your wallet?

[Shivetya]

you complain about them reading and email on someone's computer but say nothing about them fleecing you daily by taking your earnings?

Sorry, but the two are both the same, they are about personal freedom. You give up so quickly on one they are bound to be encouraged to take another.

You want the government to take care of health care but you don't want them storing personal information or getting it without your personal information. Yet at the same time no one blinks when the IRS makes a claim that you failed to pay taxes on something only invasive government inquiry would dig up?

Fuck that.

While this case is iffy, I am not quite sure if I give something to someone that I have a right to control who reads it afterward, I do believe it becomes the property of the person I sent it to. Now, is their legal right trampled by the government taking it from them? Well if it doesn't incriminate them then I best hope they like me.

Good and Bad Evidence.

[RotateLeftByte]

This agreement by for example Verizon to give Police etc 'your data' without a warrant is one reason why IMHO, US Laws SUCK.
There are some countied in the world that have data protection legislation that makes police etc get a proper warrant thus showing justification before companies hand over their copies of your data.
This stops Police 'Fishing Expeditions'.
There are probably lawyers in the US who would delight in challenging any evidence obtained in this method and being unlawful siezure. They could probably sue the company giving the data without a warrant.
A proper warrant just make everything verifiable and unchallengable.
A Lawyer friend of mine said there are two rules of Evidence.
Clean Evidence is unchallengable and should only be challenged if you have nothing else to do.
Dirty Evidence is like dog doo. Shit Happens but should not be alloed to get in the way.

In his opinion, ANY evidence obtained like this is DIRTY and every effort should be made to get is excluded.

There again, IANAL.

Encryption usability

[Beryllium Sphere(tm)]

Hushmail takes a lot of the technical pain out of the process, but the Java-based UI is slow and clumsy.

I don't quite get YOUR point...

[WebCowboy]

They're arguing that since you don't own the computer the message is stored on, you have no right to privacy. That makes no sense,

If you confess to a murder on the back of a postcard and email it to your brother, and your brother goes to the police with said postcard, or even if the mailman sees it and goes to the police before you brother even reads it, there is nothing stopping the police from charging you with murder. If the police find YOUR bloody gloves in your neighbours' yard the evidence is admissable if the neighbours willingly allowed the search or the police had a warrant to search their premesis.

Don't know where to start with this one. First, when we talk about "public domain," we're talking copyrightable works. The internet isn't copyrightable. Second, the government doesn't own the individual links in the internet backbone.

How about starting here: Search warrants are based upon the location not on the owner or originator of the evidence, so whatever copyright or ownership issues you have really do not matter. If you leave a used condom in a public park after having relations with a prostitute that later turns up dead, should that evidence be inadmissible or require some special warrant before it is examined? Is it an unjustifiable "invasion of privacy" because they can find out about your sex life? OF COURSE NOT! If you are having sex with a prostitute in a public place and don't umm...clean up after yourself, or if you confess on the back of a postcard and send it outside your private domain you cannot expect to be afforded protection of privacy.

Hell, chances are your every move is being recorded as you do your Christmas shopping, and pretty much everywhere you walk on the streets of London in public view...and you expect that sending an UNENCRYPTED transmission through a PUBLIC network to an OUTSIDE computer--without the permission of the recipient I might add--should be protected under some sort of right to privacy? What makes email so much more special than a message on a postcard, or walking down the street with a bullhorn, or skywriting, or beating the sh!t out of Rodney King on a public street whilst being videotaped by a concerned observer behind a bush?

I'm having a hard time seeing why an unsecured communication between two people should be protected when it's a phone conversation taking place over, say, Verizon-owned fiber, but not if it's an email saved on a Verizon-owned hard drive.

You're having a hard time because they AREN'T THE SAME THING. If law enforcement monitored a telephone conversation--or an instant message conversation, or perhaps the packets of data in and out of your PC, in real time, unbeknownst to EITHER party involved in the exchange, then yes, that would be wiretapping and it would require a warrant. If you are a stalker and leave a dirty phone message on some lady's answering machine, and the lady freaks out and brings in the message to the police, then there is no need for a warrant. I think that when some dork mass mails me some penis enlargement advertisement that it is the same as the stalker leaving dirty messages on an answering machine--the only difference is the media.

A historic moment?

[GodInHell]

Two slashdotters reached agreement in a thread? Brace for armagedon!

:D

-GiH

Re:A historic moment?

[masdog]

Does this mean I should put my money on the Cubs to win the World Series??

How's the "government" going to read my email?

[banerjek]

The gov't can read my e-mail all they want Considering some of the simple things the government can't seem to do, I'm seriously wondering about their practical capabilities. It takes a lot of time (a.k.a. money) to look through email closely enough to find much of interest -- email analysis is a lot more than throwing some keywords and grep statements at gigabytes of data.

I get a few hundred spams each day. Anyone who can even find the real stuff will be supremely bored. It's not even interesting to me, so if someone else wants to, more power to them.

Well, if that's the case...

[msauve]

that is, if something on the Internet is in the public domain, someone better tell the RIAA and the rest of the courts.

Old News to Steve Jackson

[acroyear]

In the infamous Secret Service seizure of Steve Jackson Games' Illuminati Online BBS system in 1990 (case resolved in 1993), the court found that the government reading unread emails on a machine by seizure of the machine was not "wire-tapping", in spite of arguments by the EFF that the end result is the same - the government sees your communication before you do.

For all of the alledged "protections" congress has given electronic communication, they've all been mere extensions of protection for variations of wire-tapping. If the government can actually get the physical hardware in their hands, anything goes. There is no sense of protected files or folders on a disk drive.

opened envelopes

[don_bear_wilkinson]

Sometimes, the envelope was never sealed in the first place - maybe the stamping machine ran out of water or glue.

Sometimes formerly sealed envelopes become unsealed during normal handling. The sticky part of the flap was left too dar and so it had a tenuous grip on the paper, or the like.

You're right about it not being paranoia. It can be an overdeveloped sense of importance. As if what you (the generic you) get via the letter carrier is actually that interesting... riiight.

"Paranoid schizophrenics outnumber their enemies at least two to one"

"Just because you aren't paranoid doesn't mean they aren't out to get you. :)

Re:opened envelopes

[voice_of_all_reason]

Try sending something whacky through the mail. A box of sand, or a brick. See if it gets through in one piece.

Or read from someone who's done it: http://www.directcreative.com/aaexperiments.html

All This Comparison To Phones..

[Anonymous Coward]

If someone calls you and leaves you a threatening voice mail, and you cooperate with the police and turn it over to them, they do not require a warrant. They don't have to contact the person that threatened you for permission to get access to said voice mail.

Same can be said of snail mail, if someone sends you something criminal, and you turn it over to the police.

Seems to me it's the same exact case here, well, minus the "threatening" part.

Nice Loophole

[mandelbr0t]

But federal prosecutors say they don't need a search warrant to read your e-mail messages if those messages happen to be stored in someone else's computer.

But e-mail users should not expect privacy when they allow an outside party to store their messages, prosecutors argue.

I don't use an outside party to store my e-mail. I connect using SSL when the remote server supports it. I accept SSL connections on my incoming e-mail. However, to prevent my computer from being flagged as a Spam host (simple DoS attack), I forward my mail through my ISP (who also accepts SSL connections). I am not storing this e-mail on my ISP's computer, and the message disappears from my ISP after it has been successfully sent. I am only allowing the ISP to store the message temporarily in case it can't be sent immediately.

The US law seems like a loophole which allows investigators, who can't get permission to read the e-mail on my server, to read my e-mail from the queue on my ISP's server. This would be like subverting the need for a wiretap warrant by tapping at the exchange rather than my residence. Anyone know if this is really the way it works? Or am I interpreting "stored in someone elses computer" too broadly? Is it safer for me to stop forwarding through my ISP if I value my privacy?

mandelbr0t

Re:Nice Loophole

[Caledai]

Yes.

So you encrypt the channel of communication to your ISP's mail server, which says nothing of what happens to your email sent via that mail server once it reaches it. For them to send your email - they must be able to read it - and as its only sent via an encrypted channel - and not encrypted in itself, they can.

If they decided to - there could log your message, or store it however they wanted - and then send it. Don't think because your using SSL that your email is automatically safe - all you are protecting is the communication channel between your computer, and the mail server - outside of that - you have no real control.

I access MSN via a VPN - but thats only the traffic between my computer and my VPN server. It doesn't say anything about the traffic from my VPN server to MSN

Even using SSL - any mail server your email passes through can read, and store, and log your emails unless the contents of the email are specifically encrypted

Re:Nice Loophole

[The Cisco Kid]

And unless you have a specific binding contract with your ISP that prohibits them from doing this (and I seriously doubt that you do), they have every right to allow LE personnel to do exactly that. If you don't agree to it, you could get a real IP that isnt on a cable or DSL modem, and send from there, but then the same applies to the recipients mailserver.

If you want truly private email, set up accounts on *your* server for anyone you want to exchange email with, and make sure you trust them not to divulge it. Also require POP3s and/or HTTPs for accessing it.

electronic mail equals mail, or not..

[Anonymous Coward]

the idea that personal mail adressed to you is free for anyone to read on the way to you because its not stored on YOUR property.. is just stupid beyond belief.... electronic mail or paper mail.. same thing if you ask me....

he should win this case easy.. if he doesnt.. well it just teaches the world that much more about the "freedom" they enjoy over there in america..

ISPs/etc are trusted custodians

[redelm]

A bigger question is whether an ISP, Yahoo or gmail can hand over your email without a warrent or your permission. You have a contractual relationship of some kind with them, and they are effectively your servants with an expectation of privacy.

I think there is law in a number of states which clarifies that electronic communication in transit or in storage are protected.

I think I can spot a moron....

[avasol]

And it just has to be the person who reads this and doesn't have the very healthy thought of "What? The Government is allowed to read my e-mail? Isn't that just wrong in the first place? Why the fuck are they allowed to read my e-mail? What the fuck is wrong with this place? What the hell is going on?"

similar legislation and ownership

[Tired_Blood]

That's not the argument they're making. They're arguing that since you don't own the computer the message is stored on, you have no right to privacy.
That makes no sense, however. I don't own the phone network once it leaves my house (more precisely, the NID), but I have a right to privacy as defined by quite a bit of legislation.

That right there is the key. There is quite a bit of legislation protecting phone conversations. There isn't similar legislation in the case of emails.

Please read this reference. Those definitions apply to "CHAPTER 119--WIRE AND ELECTRONIC COMMUNICATIONS INTERCEPTION AND INTERCEPTION OF ORAL COMMUNICATIONS". (sorry for the ALL CAPS, just copy/pasted the title).

Notice that both telephone AND email communications (specifically noted for this discussion is definition #17) are listed. Most of Chapter 119 have them used together, meaning that they do have "similar legislation".

In addition to that, the police do not need a warrant if they have permission from the owner.

Generally, an owner is defined as the only person that can (legally) willfully give away something. Here, this is specified in (3)(b)(ii): "with the lawful consent of the originator or any addressee or intended recipient of such communication." Nobody else can do that: so the originator, addressee or recipient are the owners.

A custodian can usually be used to bypass directly involving the owner, usually for practical reasons. Using your car analogy, the owner is not necessarily in the car (could be a relative, rental company or employer) and the driver can still consent to a warrant-less search.

But, in this case, the ISP is treated as sort of a restricted custodian of the data: if they unintentionally obtain evidence of a crime, they can report it; if they are compelled to give up the data (such as a warrant); etc. But they can't just give it away.

And finally, IANAL.

Incorrect

[msobkow]

The technology was funded via DARPA, but the infrastructure was built out by companies. As the taxpayer paid to create the technology, it was placed in the public domain so the whole of society could benefit.

That has nothing to do with whether mail is private or not, and precedence says (at least in Canada) that the post office can't just open mail without warrants or wartime measures in place. I see no difference between trusting the sysadmins of emails services and trusting the postal workers.

Your letter travels public highways in the postal service. Your email travels between nodes the same way. Just because someone could steam open an envelope never made it legal.

The disclaimers are just paranoid legal risk-covering.

'Fraid not

[Anonymous Coward]

The law doesn't work that way.

The typical example is a warehouse where people pay a fee to store stuff. If the warehouse owner lets the police in to look around, then the sarech is illegal. If you own an apartment, but are renting it out to someone else, you can't let the police in to search it.(you can let yourself in, and then report to the police what you saw, and that will give the police PC to GET a warrant).

If my (and they are mine) e-mails are stored on your server, the police need a warrant to search them. You can let them search your COMPUTER, and they can see that I HAVE mail there, but can't read the contents. No differnet than if you are a courier I hired to go to the post office and get my snail-mail. That is simple evidence code 101.

Re:What part of the...

[shanen]

What part of the only good spammer is a dead spammer don't you understand?

Seriously, I really have mixed feelings about this one. It's just so difficult to imagine a spammer doing anything good. My philosophy is that all things have at least two sides, but a good side of a spammer? That's a serious strain on my philosophy...

On the other hand, I strongly believe my personal information should belong to me, and the government should have to show probable cause before seizing *ANY* part of it. The Fourth and Fifth Amendments are not just a good idea. They're the law, and rightfully so.

dictatorship

[AlgorithMan]

Federal prosecutors say they don't need a search warrant to read your e-mail messages if those messages happen to be stored in someone else's computer

thats as legal as reading your regular mail before it has been delivered to you (while it's in someone elses house - the someone else being the post office)
realize it, GWB is building a dictatorship http://video.google.com/videosearch?q=terrorstorm

Re:dictatorship

[The Cisco Kid]

Postal mail has very specific protections, specifically outlined in US law. And if spammer A sends a spam to recipient B, and recipient B uses Yahoo, recipient B has every right to allow the government to read that spam, and very good motive to do so if it helps to build a case against spammer A. And for that matter, so does Yahoo. They provide a free service (albeit a crappy one), and it is entirely their right to include in their TOS that by using their services, you agree that they have the right to allow the government to use your email to prove that someone sent spam. It isnt clear wether the spammer was using Yahoo, or his victims were, but I suspect the latter.

Email *to* this person(spammer) was not read, email he had SENT out to thousands of people advertising his penis pills and whatever else was read, AT the recipient's end.

If its private, dont email it to someone else.

Re:dictatorship

[AlgorithMan]

recipient B has every right to allow the government to read that spam, and very good motive to do so

but the recipient doesn't allow it - the email service does it without asking the recipient (except writing it in the TOS which nobody reads)

Re:dictatorship

[The Cisco Kid]

The article didnt say wether the recipients were involved or not.

And even if they werent, not reading the TOS of a free service doesnt mean you are not bound by it.

Example ass-recognition code:

[Anonymous Coward]

function ass_p (image i) {
  return true;
}

Government does not have rights at all.

[k1e0x]

Get the terms right because so few people anymore even know what a right is, and how it is different from a privilege.

Government does not have rights the people have rights.

This is like saying its ok to read postal mail so long as you do it in the post office. It is clearly against the 4th Amendment.. don't gloss over, read it.

4th Amendment:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

IE: This is a warrant to seize your e-mail from AOL servers.

Amendment IV, United States Constitution

[the_REAL_sam]

They do so need a warrant. See: Amendment IV, United States Constitution

"The right of the people to be secure in their persons, houses, papers, AND EFFECTS, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

In any case, they still DO need a warrant to search that 3rd party server. The warrant would simply have to describe the place to be searched, and specify the things to be seized, in accord with the ammendment.

There are lots of analogies: P.O. Box, Voice Mail, Tapped phone lines, Gym locker, direct ip-ip chat (with no brokering middleman server, except routers). Each one of them has a slightly different feel, but in each case it seems clear that the RIGHT thing to do is respect the person's privacy. That the email sits on a server with a delay does not seem relevant (any more than the latent speed of light transmission time when the sound is IN the phone lines)

However, until the authorities have been duly punished for violating the man's right to privacy, it would behoove those who WANT their rights protected to run their own mail servers (either in foreign, non-extraditing countries or in their own homes.) :-)

http://james.apache.org/

If electronic communications had existed at the time of the framing of the constitution, I really doubt they would have left gaps for the government to abuse our privacy by means of raiding electronic mailboxes.

PS -- It wouldn't hurt to use pgp encrypted mail ...uh... sure.

"a-l-w-a-y-s---d-r-i-n-k---y-o-u-r---o-v-a-l-t-i-n -e" :-D

Re:Amendment IV, United States Constitution

[The Cisco Kid]

Spammers using PGP to encrypt and/or sign their junk? Riiiight. We can only hope.

The govt didnt go into this spammmer's computer and read his private email.

The read the thousands of spams that the spammer sent to thousands of other people on their ISP's servers. An advertisement is hardly 'private', especially if its unsolicited, and sent to people without their permission. Just like with the 1st amendment, 'commercial speech' such as an advertisement doesnt get nearly the same protection that noncommercial speech does.

In any case, I would say the *recipient* of an email has as much (or more) right to decide who gets to read it, then the sender does. And I would sure say that if you voluntarily and intentionally send thousands of copies of effectively the same email, you give up any right to privacy. You want to keep it private, dont spam it to the world.

Re:Amendment IV, United States Constitution

[the_REAL_sam]

No, I wasn't talking about spammers using PGP. I was talking about people using PGP to help guard (some) against warrantless mail snooping.

I thought the details of the case described the police intercepting not HIS computer, but a third party's computer, and taking his email from there. From a gmail or yahoo or hotmail or who knows... but the mail server was not his own.

From the description:
"Federal prosecutors say they don't need a search warrant to read your e-mail messages if those messages happen to be stored in someone else's computer."

The amendment says "you have a right to privacy", and "that right cannot be violated without a warrant." To get that warrant, oath or affirmation is needed. It sounds like the affirmation is easy...they spammed thousands of email accounts... so the police COULD have EASILY gotten a warrant, but they DIDN'T. And NOW they're (allegedly) saying they didn't need one, but they DID. Simple as that, right?

The cops messed up. Too bad, since they basically had "case closed" before they went in without a warrant.

Next time, let's HOPE they remember the good ole U.S. Constitution they swore to uphold (you know... the constitution... that ratty old piece of paper that makes America a place worth living in...the big "technicality" that GW Bush and his cronies seem to have been "forgetting about" for the past 7 years... the thing that supposedly differentiated the U.S.A. from the Soviet Union for the entire duration of the cold war) before going in and searching somebody's constitutionally protected personal effects.

Re:Amendment IV, United States Constitution

[k1e0x]

You can't put limits on an unalienable right.

You cant sorta have freedom of speech.
The amendment is there specifically for when people will get hurt feeling or when speach is controversial or political.. If you were saying only nice things.. Why else would you need an amendment defending this right? Its useless if its limited.

Same thing with the 4th amendment, its not you have privacy *some* of the time. Its ALL the time. Government needs a warrant to look at anything you own. Your house, your postal mail, your phone conversation, your gym locker, your e-mail. Its doesn't matter if your best friends with the uni-bomber... if your a US citizen they need a warrant.. and we must demand that they get one.

The Constitution IS the HIGHEST law of this land, when Government finds "ways around it" or "exceptions" they are breaking the law and the restrictions the people put on them.. and it its not out of date, it means exactly what it says, we know what they were thinking because they wrote it down.

Re:Amendment IV, United States Constitution

[The Cisco Kid]

They didnt read email that was sent TO HIM, they read email that HE sent to SOMEONE ELSE, and I'm pretty sure that the SOMEONE ELSE agreed (either explicitly, or implicitly in the TOS of their email provider) to said reading.

And the email in question was both commercial and bulk, as a spam advertisement. An advertisement, unless it is sent only to very carefully selected recipients (and spam by definition pretty much isnt), is not something that has any reasonable expectation of privacy.

In other words, his spam victims would be happy if he kept his messages private, as opposed to blasting them into their mailboxes all over the world.

Re:Amendment IV, United States Constitution

[the_REAL_sam]

That is not what happened. According to the article, the prosecuters took his email messages from the mail server where they were stored. It is implicit in the phrasing that the guy who's getting sued had his personal email account managed and stored on a server that did not belong to him, and they read the messages that he had stored on a server in his own email account. That's why it is such a benchmark case: the feds seem to be claiming that they don't need a warrant to read your email if it's on hotmail, yahoo, gmail, etc.

From the article:


The government needs a search warrant if it wants to read the U.S. mail that arrives at your home. But federal prosecutors say they don't need a search warrant to read your e-mail messages if those messages happen to be stored in someone else's computer.

That would include all of the Big Four e-mail providers -- Yahoo, AOL, Hotmail and Google -- that together hold e-mail accounts for 135 million Americans.

Twenty years ago, when only a relative handful of scientists and scholars had e-mail, Congress passed a law giving state and federal officials broad access to messages stored on the computers of e-mail providers.

Now that law, the Stored Communications Act of 1986, is being challenged in federal court in Ohio by Steven Warshak, a seller of "natural male enhancement" products who was indicted for mail fraud and money laundering after federal investigators sifted through thousands of his e-mails.

The government isn't saying it has unfettered access to e-mail. But e-mail users should not expect privacy when they allow an outside party to store their messages, prosecutors argue. In fact, many e-mail providers require their customers to sign agreements acknowledging that the provider may release customer information as required by law.

http://www.startribune.com/789/story/884388.html


It is truly a concern. Running your own mail server has never been as good an idea as it is now.

Re:Amendment IV, United States Constitution

[The Cisco Kid]

You really beleive that he stored 1000's of his own spam messages in *his* email account? If so you are loony.

Senders of spam dont store it anywhere except in the zombie/trojan/botnets they use to send it from, and those arent proper 'mailservers' by any definition. The only real mailservers spam is 'stored' in are the recipient's.

Story description is misleading

[indil]

The issue here isn't whether the government can read your email on another computer; it already can by using warrants. The issue is whether the government -- or anyone -- can read your email by a court order, which is easier to obtain than a warrant. The government is arguing that a court order or subpoena requirement is sufficient to protect the privacy of the public.

From the article:

During the investigation, agents obtained court orders allowing them to collect thousands of Warshak's e-mails from Yahoo and another e-mail provider. A court order requires a lesser burden of proof than a search warrant.

Warshak sued in federal court, claiming that the search of his e-mail violated the Fourth Amendment of the Constitution, which protects citizens against unreasonable searches and seizures. ...

In July, a U.S. district judge agreed, ruling that e-mails stored on the server of a commercial Internet service provider can't be read without a search warrant. ...

The government appealed the decision to the U.S. Court of Appeals for the Sixth Circuit, which has yet to rule on the case. E-mail users are protected from overzealous investigators, the government argues, because a search of stored e-mail still requires a subpoena from a prosecutor or a court order from a judge.

What this comes down to is the difference between a court order and a warrant and which one best fits the nature of electronic messages and the method by which they're delivered.

There is no privacy contract, social or otherwise, between the sender of an email and the computers that forward it to its recipient. Each forwarder may belong to different enterprises, each with its own usage and security policies, which may or may not include archiving your email for future scrutiny. If your email is forwarded by a computer that helps the government or publishes your email then you're hosed. Otherwise, I would argue that your email, stored on a physical medium on private property, should require a search warrant, much like retrieving a written letter from your office or home would.

Postcards vs Email

[jdavidl]

Whether a postcard is read or not is not the point. The point is when the contents of a postcard - or an email - can be used in a court of law.

Secure the parents is easy

[bill_mcgonigle]

I, for one, don't want to have to try to teach my parents how to use PGP so the government won't find out I'm planning to arrive for Christmas dinner at 2PM.

Give them an account on your server and check the SSL buttons for them on their clients. Easy enough.

If you're worried about the disks being unencrypted then use a filesystem that needs a password on startup. Odds are the feds are going to pull them from the rack to bring back to the lab anyway.

Really weird

[Anonymous Coward]

Sounds like BigBrother state to me. Here in Europe your mail (electronic or not, doesn't matter) is yours and only yours where ever it is. Snooping on it requires always court order. There are some minor exeptions, if you have mail at work, on your employer's machine, but even there only operators may transfer the work mail to other employees. Personal mail must not be read even then.

It's quite easy to get court order though and many officials don't care at all about regulations, but that's universal: police do whatever they want if they think they won't get caught. On the other hand, it's quite hard to get this (illegally gotten) material to valid evidence at court.

Would this effect POP3 Users?

[Anonymous Coward]

Would this effect POP3 Users? This sounds like the federals were able to get access to the Email servers at the ISP and were able access the email that people left on the server. Legal could have argued that since the people left the material on the servers, they did not care about privacy. It would have been very easy to get all the files at ISP, and find everything on the server. Systems like MAPI has people leaving mail on the server forever, which makes it very eary to access most of the email any time they want to.

If the email went through something like a POP3 server and has been deleted, its very hard to access the email, and it seems real unlikely they could get a way to access the email on your home system.

Double Edged Sword

[LuYu]

Federal prosecutors say they don't need a search warrant to read your e-mail messages if those messages happen to be stored in someone else's computer.

This argument is interesting because, if it succeeds, it has the potential to backfire against copyright. The government is essentially arguing that the owner of the computer is the owner of the message -- and by extension the data. Why not ebooks? Or mp3s? Or any other data obtained in any way?

While we, the computer owners -- We the People, essentially -- all know everything on our computers is ours, Microsoft and the *AAs have been arguing the opposite for years. This would really be a blow to their campaign to remotely own everyone's computers.

Finally, the government is standing up to Microsoft again ;)

Email isn't special

[bytesex]

In IP tech, email is just an implementation of a protocol accross several hosts. If tomorrow we decide (finally!) to get rid of internet mail and replace it with something called goobledegook, which is spam-free, encrypted on demand, and uses the little green men protocol to ensure delivery, then all of a sudden we'd need new legislation to protect it. The internet and its associated tech are just too much of a moving target for privacy legislation. (That is of course aside from the current fad among legislators to consider privacy a quaint thing from the past.) Until the time that the government itself officially relies on something, there is no need for legislation around it. It's our own fault in a way - we should have specced out SMTP in a better way to begin with. Just think for yourself - if email was to be officially regulated, it (the technology) couldn't ever change again. So do you like your current levels of spam ?

There is nothing to rethink.

[master_p]

There is nothing to rethink. Communication is/should be private, and that's it. In order for the government to snoop around, they have to have a warrant issued by the local justice department. Otherwise it is not democracy.

G3T V!agrA N0w!

[Anonymous Coward]

... a seller of "natural male enhancement" products sued after a fraud indictment based on evidence gleaned from his electronic mail.

Given the nature of this kind of spam, is it unreasonable to assume that he might have sent that email to the government?

Spirit and Letter of the Law?

[wild_quinine]

Where does Skype come into this? Where does VOIP come into this? Are they protected or not? Some might be, and some might not, by the letter of the law. But we know in our heart of hearts that these are phone calls, and should be treated as such - just like most of us understand that emails are private, if not by law then at least by convention. There is meant to be a spirit of the law, as well as the letter of the law and the fact of the matter is that if the feds are opening emails because of a legal loophole - because nobody saw email coming in time to protect it in law - then that is a situation that needs to be fixed.

Obviously the answer is...

[Mennez]

Store your email in another country, encrypted and anonymously. If you have incriminating evidence in your emails, take steps to protect it. It's as simple as that. The majority of people don't talk about bombing important places or laundering money on their gmail accounts. They talk to other people they know about the last football game or when their next date is. If you are talking about your globabl control plans, or ludicrously spamming young men with 'natural male enhancement' ads, use something like snonmail.de to protect yourself.