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

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: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.

Encryption

[SirGarlon]

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

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: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.

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.

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.

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!