Expectation of Privacy Extended to Email

An anonymous reader writes "In a 6th circuit court decision [PDF] today 4th amendment expectation of privacy rights were extended to email. 'The ruling by the Sixth U.S. Circuit Court of Appeals in Ohio upholds a lower court ruling that placed a temporary injunction on e-mail searches in a fraud investigation against Steven Warshak, who runs a supplements company best known for a male enhancement product called Enzyte. Warshak hawks Enzyte using "Smiling Bob" ads that have gained some notoriety.'"

Comments

too bad

[mchale]

I agree wholeheartedly with the court's findings -- people have an expectation of privacy when sending (hardcopy) written correspondence, and it makes sense to extend that privelege to the digital realm as well.

It's just a shame that the right decision comes down on the side of the spammer.

Re:too bad

[LWATCDR]

Yea so you can go to jail for just having an Ethernet sniffer!
Really people should have the same expectation of privacy in an email as they do with a postcard. None at all.
It is clear text.

Re:too bad

[Jeff DeMaagd]

It's just a shame that the right decision comes down on the side of the spammer.

I think it's a dumb snake-oil product with a dumb ad campaign, but "spammer" is not the correct word to use as far as I know. Spam is not used to describe TV ads that help pay for what you are watching. The OED's definition is about bulk messaging over the Internet.

Re:too bad

[mastershake_phd]

It's just a shame that the right decision comes down on the side of the spammer.

Everyone deserves the same rights and treatment under the law.

Re:too bad

[UbuntuDupe]

Everyone deserves the same rights and treatment under the law.

I agree.

Well, except for rich people. And pharmaceutical companies that spend more on advertising than research. AFAIK, they're first against the wall.

But yeah, equal treatment for everyone else.

Re:too bad

[DragonWriter]

Yea so you can go to jail for just having an Ethernet sniffer!

Nothing in the current decision suggests that, since it is about the meaning of the Fourth Amendment and therefore the limits of government power.

It is clear text.

So are much of the the hardcopy material in which you have a reasonable expectation of privacy under the Fourth Amendment. Encryption has never been a Constitutional prerequisite to a reasonable expectation of privacy.

Re:too bad

[Vancorps]

Don't know how email works in your organization but here it's encrypted until it hits the first MTA. An ethernet sniffer won't get you anywhere. A postcard also cannot be removed from the mailbox by anyone other than the recipient, a representative, or through a court order. That sounds about right for email.

Just because it's realistic to say that a few people might read the postcard while handling your mail doesn't mean that the police should be able to just grab all your mail and rifle through it without a warrant.

Re:too bad

[Constantine XVI]

Only if you don't run it through PGP or some other encryption program first

Re:too bad

[TFGeditor]

"Really people should have the same expectation of privacy in an email as they do with a postcard. None at all.
It is clear text."

Except for the fact that you cannot read someone's email as a routine matter of simly handling it, as in a mail carrier. It takes extraordinary effort to access/read someone's email, akin to steaming open an envelope. Ergo, your assertion is wrong.

Re:too bad

[TFGeditor]

Uh, I dunno where you buy your weapons, but if you paid $20k for an M16, I have some ocean front property in Arizona I'd like to discuss with you.

Re:too bad

[LWATCDR]

I agree that email should require a court order for the police to search it however just as two people holding a conversation in a public place have no expectations of privacy the same is true of email.

At my office we just got an email from a customer and she included her credit card number in the EMAIL! No we didn't tell her to send it but I hope like heck that she doesn't read this story and think that it is alright to do in the future!

Re:too bad

[TheMeuge]

Well, you can go ahead and try to find $20'000 for an M16 (which is not fully automatic by the way, and only fires 3-round bursts, unless modified or the A1 version, which nobody would ever want anyway).

While you collect the $20'000 for the M16, I can get 10 AK-74s and 50kg of ammo... and still have some money left over.

See - you don't need money, just some common sense.

Re:too bad

[Vancorps]

The difference is that the casual observer can hear two people holding a conversation in a public place. You cannot casually observe email without explicitly trying. That is the big difference, it takes effort to look at email and that is why there is an expectation of privacy.

I've dealt with a few organizations where they've sent credit card info in an email. They are business cards with fraud protection so most people don't worry about it. Of course you must trust the recipient. Ultimately no one things their email will be intercepted in transit because that rarely happens due to the fact that you'd have to have a compromised DNS server to accomplish it or compromise a router in the path. In either circumstance an alternate crime has already been committed and will be dealt with. I'm not sure there has ever been a case of credit card fraud because someone sent and email with credit info and the message was intercepted. It's always the recipient of the information mishandling the data in some way.

Personally I don't care either, what I write in email I freely share with others because I use my corporate account. I'm the only one in the company authorized to go through email so I really don't have to worry, beyond that it just doesn't matter. If you speak ill of someone speak ill of them to their face. I've never been afraid of my emails being public but given that the execs often plan secretive meetings and the future of the company through email I can understand the expectation of privacy. Just because I can go through everyone's email doesn't mean that I do. I require a specific reason and only then will I move forward. I do this even when an exec asks me to pry into email accounts. If they don't have a reason then I don't do it. The company lawyer supports me in it all so I'm pretty safe.

I would agree that sending CC info in email isn't necessary the brightest thing to do but no more so than giving it over the phone to someone which also enjoys an expectation of privacy.

Re:too bad

[Myopic]

Aha, but there you are wrong. If you send a postcard, you have very low expectation of privacy. However, if you put your letter inside an envelope, then you have an expectation that the envelope will only be opened by the intended recipient. Regular email as we mostly know it is like a postcard, but you can put your postcard into an electronic envelope by encrypting it, which would give you a greater expectation of privacy. Sure, a person can still break your encryption, but that person could also just open your envelope. We would recognize these actions as crimes, preserving your privacy.

One difference might be that people sort of think of email more like a letter than a postcard. A court could find that email has protections similar to a letter. As a techie, I would disagree with that, exactly because of what the GP said: it's so easy to sniff around and see emails that it's difficult to say it's a protected medium. I predict in the future a huge legal case where this exactly is the crux -- the question, what is the expectation of privacy in an unencrypted email? I further predict that the result will be similar to a postcard, not a letter.

To be clear, the decision today didn't look at that question, rather the question of whether a warrant is required to search email at all. I see that as so blatantly obvious that I'm shocked the government would even question it. Look, government, hey, you know for 250 years courts have consistently told you that you need a warrant to search just about everything that isn't an emergency, so by now you should be used to it.

Re:too bad

[Chris Burke]

Regular email is like a snail-mail in an envelope -- it is trivial to read it, but it requires conscious effort to do so. A postcard could fall on the ground text-up and be read by random passers by who just happened to glance at it. Unless there is something serious going wrong, someone else's email is not going to just pop up on your screen. You have to make a conscious effort to read someone else's email, and yes I'm including using a packet sniffer.

Encryption is like shipping your letter in a box with a combination lock on it. That may be a really good idea if the contents of the letter are extremely important, but 100% absolutely NOT required for you to have an expectation of privacy vis a vis the 4th Ammendment.

People keep confusing "expectation of privacy" with "practical feasibility of someone violating their privacy if they want to". They are not the same thing. As a techie you might think it has something to do with how difficult it is to read email, but that's really irrelevent, which is obvious if you look at every other method of communication.

I have an expectation of privacy when conversing in my home, even though just putting your ear to my window would allow you to hear.
I have an expectation of privacy when using a cordless phone, even though especially the old ones were trivial to listen in on.
I have an expectation of privacy when sending a letter, even though a light shone through the envelope can reveal its secrets.

Now, if you are worried about people who don't care about your expectations of privacy or the law, and your data is important, then yes you should be aware of the practical reality and take extra precautions, eg encryption, or a sound-proof booth in your home, or whatever. That is not the same as an expectation of privacy.

Expectation of privacy means you expect you will be granted privacy, not that you expect that nobody can breach your privacy.

Re:too bad

[imgunby]

I don't believe your analogy (which we've all beaten to death here) is entirely accurate though. Certainly, I will concede that the email headers are like the postcard; no reasonable expectation to privacy, any more than the addressee is "secret." However, I believe that there is sufficient reason to presume that the body of the message is reasonably "private" since normal internet equipment does not need to examine that information to route it across the web. And for the "difficulty" in sniffing that "secret" body content... I'd guess it's about as hard as it is to open someone's physical mailbox and open what's inside. Not hard, but not legal either. Having the ability to do something doesn't make it right or legal, why should packets in the ether be any different?

imgunby

Re:too bad

[DamnStupidElf]

To be clear, the decision today didn't look at that question, rather the question of whether a warrant is required to search email at all. I see that as so blatantly obvious that I'm shocked the government would even question it. Look, government, hey, you know for 250 years courts have consistently told you that you need a warrant to search just about everything that isn't an emergency, so by now you should be used to it.

How much leeway does the U.S. government have with the postal service to begin with? Are postcards considered "in plain sight" during transit, for instance? What about when they arrive? You have to open an envelope and pull the letter out to read it, but cops with a generic search warrant or who are invited in can almost certainly glance at the postcards you have taped to your fridge.

I think what Congress really needs to do is specify that sending things over the Internet is equivalent to broadcasting them with radio waves in terms of privacy; there is none. Encrypt, or suffer the consequences.

Re:too bad

[mcrbids]

One difference might be that people sort of think of email more like a letter than a postcard. A court could find that email has protections similar to a letter.

But how can this situation be likened to a car? Car analogies are always the best way to explain complicated things!

Re:too bad

[pauljlucas]

I have an expectation of privacy when using a cordless phone, even though especially the old ones were trivial to listen in on.

No you don't. From here (among other places):

[I]n United States v. Smith, while conceding that nearly half of all American households use cordless telephones, the Fifth Circuit held that "pure radio communications" are not afforded the same Fourth Amendment protection as communications carried by land-based telephone lines because "broadcasting communications into the air by radio waves is more analogous to carrying on an oral communication in a loud [p138] voice or with a megaphone than it is to the privacy afforded by a wire."

Re:too bad

[DerekLyons]

Aha, but there you are wrong. If you send a postcard, you have very low expectation of privacy.

Actually - I have a very high expectation of privacy for that postcard. Why shouldn't I? It's not on public display and at no point in its transit from sender to recipient is it ever in a state where a casual member of the public can gain acess to it to read it.
 
In fact, it takes abnormal conditions (mailbox fails in some manner and the postcard ends up on the ground) or deliberate malfeasance (somone reaches into the mailbox or delivery vehicle) for it to become exposed to a third party. Furthermore, a letter in an envelope has exactly the same privacy failure modes with the trivial requirement of opening the envelople required.
 
 

Regular email as we mostly know it is like a postcard

Precisely - regular email cannot be acessed by a third party absent accident or malfeasance.
 
 

One difference might be that people sort of think of email more like a letter than a postcard. A court could find that email has protections similar to a letter. As a techie, I would disagree with that, exactly because of what the GP said: it's so easy to sniff around and see emails that it's difficult to say it's a protected medium.

This is precisely why your analogy fails - it's easy to sniff around if the person has privileged acess _or_ deliberately utilizes tools to perform the sniffing. Just like a physical letter (or postcard) it takes either a systematic failure or deliberate action to view the contents of an email, it is virtually impossible to do so casually.

Great!

[Colin Smith]

Now we don't have to encrypt our emails!

Patriot act

[CaptainPatent]

While this does not deal specifically with the patriot act, this will hopefully help set a precedent that a lot of the rights we "gave up" with respect to wiretapping in the patriot act will not be tolerated.

Enzyte verdict

[Lurker2288]

Boy, I'm glad that's settled. Now I can get back to livin' free and steppin' easy.

Re:Can we extend this

[DragonWriter]

Cos if we can get webmail onto the list, maybe there is a chance we can get slashdot comments done as well.

Unlikely. Slashdot comments are public by design. Webmail is simply an interface to otherwise regular email message, which this covers under the logic they are intended for an identified recipient and provided to other intermediaries on the way for delivery, much like traditional mail.

It's about time

[TFGeditor]

"In a 6th circuit court decision [PDF] today 4th amendment expectation of privacy rights were extended to email."

Finally, we are getting some rights restored/extended rather than taken/curtailed.

Re:It's about time

[spikedvodka]

What I want to know though is: How does this jive with AUPs that explicitly state "There is no expectation of Privacy"? and specifically, with respect to private employers, and public sector employers?

Also, how does this work with State requirements that we (as a company) keep copies of everything sent over e-mail?

Re:Does anyone else see this as a bad thing?

[DragonWriter]

I mean, sure... it gives you leverage to make sure your privacy isn't infringed upon by government agencies, but don't you think it could create the expectation that internet communications services are _required_ at all times to encrypt communications, even when the sender might have wanted to use more open and readable formats (and possibly not necessarily agreed to be so open by one of the recipients)?

Did similar past decisions regarding public phones and postal mail compel telecoms and the USPS to encrpyt all telephone transmissions and letters?

Re:wording

[Stanistani]

The wikipedia article on Enzyte falls under the category: sex stubs :)

Re:How is email privacy currently violated?

[Anonymous Coward]

Be careful: under some circumstances, threatening to assassinate someone is a crime in and of itself, even if you don't intend to carry it out.

Password-protected

[bar-agent]

Even more so, any password-protected account should give an expectation of privacy. The only people seeing those things should be you, and whoever you've got the account with, for their own purposes only and they shouldn't give access to anyone else.

That's the whole point of passwords! I'd say that's a pretty straightforward expectation.

Courts are irresponsible

[Anonymous Coward]

The court's opinion is blatantly obvious to anyone on Slashdot:

"In considering the factors for a preliminary injunction, the district court reasoned that e-mails held by an ISP were roughly analogous to sealed letters, in which the sender maintains an expectation of privacy. This privacy interest requires that law enforcement officials warrant, based on a showing of probable cause, as a prerequisite to a search of the e-mails."

Yet the courts took 20 years to figure this out. People seem to accept it -- that's just 'the way it works' -- but it's a travesty, and an injustice to 20 years of defendants. The Judiciary is responsible for delivering justice, yet all they deliver is process. If their process doesn't work -- for 20 years -- to hell with justice for all the people that are screwed in the meantime; we'll get it right eventually. They're like the most incompetent, hide-bound business, delivering nothing profitable, committed not to outcomes but to long-established procedures.

If I took 20 years to adjust to some change in IT and deliver on my responsibilities, I'd have been fired 19 years 6 months ago. There is no accountability for the Judiciary -- I suppose that's intended, to preserve its independence -- but what frustrates me most is that the Judiciary takes no responsibility on its own, and that people are blind to it and just accept it, like Windoze users who just accept whatever was given them.

Re:Courts are irresponsible

[Chris Burke]

Well remember that the courts can only decide issues that are placed before them. If this issue hasn't come up before, then there would have been no chance for them to explicitly state that email also falls under the 4th Ammendment. I'm not sure that's true, but in my memory most of the cases involving email as evidence those emails were obtained through a warrant and thus in those cases at least no 4th Ammendment issue arose to be ruled on.

You could call it a problem with the system that technically it is the Judiciary that decides what the law actually means, but they are only able to make that decision after a conflict has arisen and been brought before the court, and in the meantime you're basically guessing. Yet based on the precedents of postal service and telephone it should be fairly obvious that the 4th Ammendment applies to email. Also based on the fact that law enforcement generally gets warrants to recover email, I'd say they generally assume the 4th applies as well.

So when someone decides the opposite, and the issue comes before the court, the court rules on it and now we have a clear precedent of what before was merely assumed: Email is protected under the 4th Ammendment.

Re:How is email privacy currently violated?

[Dan Ost]

Robert Anton Wilson wrote a short little thing in his Schoedinger's Cat trilogy about stenciling "Cocaine Importers, LTD" or something similar on the side of a delivery van and seeing how the cops respond. It was amusing.

Telegraphs are the most analogous

[ahbi]

Whatever the law is for telegraphs should be the law for emails.
It is basically the same things 1s & 0s (long & short dashes) transmitted over copper wires (or fiber now a days) relayed by a machine or person (depending on the tech).
And even when relayed by a machine the Admin of the machine can read any email on the server. Email passes through multiple servers, at least the sending SMTP and the receiving POP/IMAP machines. I have no control over my ISP's POP server or the Admin thereof.

I assume there was no expectation of privacy in a telegraph and there should be none in an email. It would be nice, but it ain't how it works.

And now for some commentary from a real lawyer.
http://volokh.com/archives/archive_2007_06_17-2007 _06_23.shtml#1182181742

[Orin Kerr, June 18, 2007 at 11:49am] Trackbacks
Sixth Circuit Blockbuster on E-Mail Privacy: In an earlier blog post on a pending case in the Sixth Circuit, Warshak v. United States, I figured there was no way the court would get to the merits of the Fourth Amendment issue lurking in the case: there were no facts yet and no decided statutory law, and surely the panel wouldn't be so reckless as to presumptively strike down a federal statute in the absence of facts or law given the procedural problems with the case. I had a funny feeling things would turn out differently when I learned who was on the panel, though, and that funny feeling turned out to be justified: the panel just issued a blockbuster decision that tries to answer how the Fourth Amendment applies to e-mail (all without any facts, amazingly) based on arguments from amicus briefs that the government didn't address all in the context of an appeal from a preliminary injunction. Wow. More on the decision later today.

    UPDATE: Here's the key part of the opinion:

[Start Quote]
        [W]e have little difficulty agreeing with the district court that individuals maintain a reasonable expectation of privacy in e-mails that are stored with, or sent or received through, a commercial ISP. The content of e-mail is something that the user "seeks to preserve as private," and therefore "may be constitutionally protected." Katz, 389 U.S. at 351. It goes without saying that like the telephone earlier in our history, e-mail is an ever-increasing mode of private communication, and protecting shared communications through this medium is as important to Fourth Amendment principles today as protecting telephone conversations has been in the past. See Katz, 389 U.S. at 352 ("To read the Constitution more narrowly is to ignore the vital role that the public telephone has come to play in private communication.")
[End Quote]

Notably, the court's Fourth Amendent analysis combines aspects of the probabilistic, private facts, positive law and policy model (the above-quoted section being from the policy model section).

Re:Telegraphs are the most analogous

[Chris Burke]

I assume there was no expectation of privacy in a telegraph and there should be none in an email. It would be nice, but it ain't how it works.

Why do you assume that?

Granted, by the nature of the telegraph, you had to have an operator on each end to transmit/transcribe your message. With the exception of that pair of people, why would anyone expect that their message is not private? Certainly with regards to law enforcement -- I would assume there was an expectation that the telegraph operator would not hand your missive directly over to a law enforcement officer unless that officer had a warrant, and similarly an expectation that the nobody including the police would tap the transmission line and listen in on your message.

If there was a version of the telegraph which required no operators, then there would be no reason not to expect complete privacy.

But why pick the telegraph which has an obvious privacy-related flaw when we also have the example of the telephone? This is more apt because it does not have the same flaw as the telegraph, and because these days the machinery for transmitting voice data and email data is the same. Also it serves a similar function in that it's intended as a person-to-person form of communication. Do we have an expectation of privacy in phone calls as a matter of law? Yes! So should we with e-mail? Yes!

And you have that same "expectation of privacy" even if you are using an old-school easy-as-piss to overhear cordless phone. Just because it's easy to violate your privacy does not mean it is okay for people to do so. Just like when you send a postcard you have the same expectation. Sure, someone might read it, that's a practical reality. But as a legal reality neither police officers nor private detectives are allowed to pluck postcards from your mailbox and read them.

Mail and phone both have expectations of privacy, why should not email?

My T-shirt

[Nonillion]

So, I guess it won't be such a good idea to wear my i read your e-mail T-shirt at work anymore...

Re:Well...

[iknownuttin]

Inmate "Smiling" Bob will be "male enhancing" his cornhole.

you know, when I first saw those ads, I thought they were some promo for a new comedy show or something. But as time went on, it became apparent that they were actually selling a "product". Those ads are so over the top ludicrous, I don't know whether to be amused at that company's boldness to sell such a product or pity the folks who buy it thinking it will work. Then again, there may be folks who buy it for a joke or as a gag gift for someone else - that's the only reason that I think of where I would actually buy it.

Not too bad!

[FuzzyDaddy]

It's just a shame that the right decision comes down on the side of the spammer.

This is often the case - think of all the free speech cases involving Nazis and white supremicists in this country. It has a good side - it reassures us in the rule of law. If these rights apply to an alleged spammer, then we can be assured that they apply to everyone.

So hold up a beer for this guy, who has accidently helped further all of our rights. And let's hope the police get a proper search warrant and put him away for a good, long time.

Re:Does anyone else see this as a bad thing?

[Actually, I do RTFA]

Extending 4th amendment privacy rights to e-mail has nothing to do with your employer. It only restricts government action.

Re:Enzyte Why?

[OldManAndTheC]

I never understood how Enzyte ever got that big

Apparently they use their own product ...

Re:Well...

[MontyApollo]

"Gag" gift...

Re:This isn't much to get excited about

[Knara]

IANAL, but I seem to recall that courts across the US tend to use federal appeals courts decisions in other circuits in their rulings, since a precedent is a precedent. I suspect there are a great many issues that have been effectively decided for all practical purposes on a nation-wide by having appellate courts issue a decision and then later being cited that never make it to the supreme court.

In civil cases, all your email is discoverabable

[Christoph]

A magistrate judge ordered me to turn over all email requested by the other side in a federal civil lawsuit. This included email to my parents and my wife which discussed my feelings about the case, possible legal strategy, family member's health, etc.

I have come to understand that, in a civil case anyway, anything you document is discoverable (with the exception of communication between youself and an attorney and youself and an expert witness). I argued that the email was not relevant, but the courts are usually inclined to allow the other side to see it and decide for themselves. The other side got to pour over 500+ emails that have absolutely no relevant information.

details are here:vilana financial

Re:Well...

[scumdamn]

Best two word comment ever. Best comment to directly quote a parent ever. We need Slashdot awards.

No legal expectation of privacy

[PurifyYourMind]

I could be wrong, but I think the 4th amendment only covers the specific case of searches and seizures by the government. To construe it as an amendment protecting our privacy in general is wrong.

Re:Can we extend this

[shellbeach]

Can we extend this That's what Enzyte was for ...