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Court Upholds Warrantless Internet Snooping
amigoro writes to let us know about an appeals court ruling on Friday that holds that federal agents can snoop on an individual's web surfing, email and all other forms of Internet communication habits without a warrant. The court found recording this kind of information to be analogous to the use of a pen register. In 1979 the Supreme Court ruled that this technique did not constitute a search for Fourth Amendment purposes.
With a "pen register" all they get is the phone number you called.
That would be analogous to the IP address that you connected to (and maybe the port).
The question is how are they capturing the IP addresses? If they're capturing the packets, that's the same as a wiretap.
Encryption. Learn it. Love it. Live it.
...the court said, although the government learns what computer sites someone visited, "it does not find out the contents of the messages or the particular pages on the Web sites the person viewed."The search is no more intrusive than officers' examination of a list of phone numbers or the outside of a mailed package, neither of which requires a warrant, Judge Raymond Fisher said in the 3-0 ruling. I think that his honor missed something here. He seems to be saying that knowing the address of a web page is like knowing the address on an envelope, and in either case the contents is not being snooped upon. In the case of the letter he would be right, for a letter can contain anything ( I could mail a recipe for braised goat's eyes to Bin Laden ).
But a web address often has a 1-to-1 corespondence with its contents. Knowing the address is one simple - and undetectable - step from knowing the contents. They are doing an unconstitutional search here.
The laws were written with specific technologies in mind.
For example a wiretap is conceptually, if not legally, tied to telephony. In order to be a wiretap, a communication must have an aural component. Thus intercepting an email being sent over WiFi is not a wiretap, but a VoIP intercept is. Likewise intercepting an email with a voice mail attachment (such as might be generated by a voice mail/email gateway on a system like Asterix) might qualify as a wiretap.
There are provisions for controlling the reading of text messages, but the law is written for a system like the old Telex system, in which the messages are ephemeral,but stored in temporary buffers at various stages of delivery. Thus while intercepting an email in a transfer agent queue is questionable, once it is delivered to your email box at the ISP, it becomes fair game. It is no longer in transit, but stored on a server. In the days of Telex, you'd take your message of the teleprinter, read it, and shred it, knowing that it was gone forever, not recoverable from your mail box or from backup tapes.
The third part of the ECPA laws deals with something called a Pen Register: a device that is attached to an old fashioned phone line to capture the in-band signaling of the phone numbers being called. Even though the privacy concerns for email or web proxy logs are identical, these situations are not covered by the Pen Register Act.
The underlying problem is this: although attempts were made in the laws to make them independent of a specific technology, those efforts failed because US law (unlike EU law) does not recognize a fundamental right to private communication. There are packages of specific rights secured by the Bill of Rights, statutes and common law privacy concerns, but these rights are much less than a true right of private communication. The reason is that you can't have a meaningful right to private communication when that communication is mediated by a third party like an ISP or a telephone company, not unless you have a fundamental right to informational privacy.
Without a right to information privacy, anything that falls into the hands of a third party is fair game. This includes information ISPs or telephone companies store in order to route and deliver a message, up to and including the entire content of the message. ECPA, which consists of the Wiretap Act, the Stored Communications Privacy Act and Pen Register Act, closed these loopholes in its time, but as of today those loopholes are wide open again.
This process will repeat itself forever, no matter how many times we close the loophole, until a fundamental right of informational privacy is recognized. We could do that be adopting into law the EU Data Directive. The reason we don't is that this would hurt US companies which are flourishing by exploiting the America's backwater status when it comes to privacy.
Post may contain irony: discontinue use if experiencing mood swings, nausea or elevated blood pressure.