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US Wants Courts to OK Warrantless Email Snooping
Erris writes "The Register is reporting that the US government is seeking unprecedented access to private communications between citizens. 'On October 8, 2007, the United States Court of Appeals for the Sixth Circuit in Cincinnati granted the government's request for a full-panel hearing in United States v. Warshak case centering on the right of privacy for stored electronic communications. ... the position that the United States government is taking if accepted, may mean that the government can read anybody's email at any time without a warrant. The most distressing argument the government makes in the Warshak case is that the government need not follow the Fourth Amendment in reading emails sent by or through most commercial ISPs. The terms of service (TOS) of many ISPs permit those ISPs to monitor user activities to prevent fraud, enforce the TOS, or protect the ISP or others, or to comply with legal process. If you use an ISP and the ISP may monitor what you do, then you have waived any and all constitutional privacy rights in any communications or other use of the ISP.'"
So much for that slogan - The US and China (or even cold war Russia) are not really that different. Total government control over communications, news media under govt control, corruption (although to be fair that's standard operating practice for any govt...)
Code, Hardware, stuff like that.
Using a snail-mail analogy, I can understand this. If I send a postcard out (plain email), I don't expect the message on the card to remain private, as anyone in the delivery chain can read it without any tampering. When I do want privacy, I can put my message in a sealed envelope instead (PGP encryption for email) to ensure only the recipient can read it. Seems fair to me. The general populous need to be more aware that plain email is more like a postcard than a message in a sealed envelope though.
"I bless every day that I continue to live, for every day is pure profit."
"Think about it" comes in the same jar as "obvious". Both have only one reason to exist, to make you look like a fool if you don't agree.
"Think about it" is usually the final sentence after a list of "proofs" that present the point of the one arguing. "Obviously" is used whenever he does not have any facts to support his theory. No facts needed, it's "obvious" and if you don't agree, you can't even see the obvious, dumbass!
We used to have a Bill of Rights. Now, with the rights gone, all we have left is the bill.
It's not like the Bush administration cares what a court says. They'd do it regardless. It's a matter of national security, you know?
Because, of course, terrorists are using unencrypted email to plan their misdeeds.
It might take something like this to put PGP and the like into the mainstream.
Maybe I have some funny concepts what the difference between a company and a government is supposed to be, but a company should first and foremost have its shareholders and owners in mind, a government its people (who're, technically, its owners).
Is it me or is that difference not quite clear here? That an ISP snoops on its users is not a good thing, but considering that its customers are just the necessary evil to get the money for its owners, they're not their main concern. The people, on the other hand, should be the main concern of a government.
It's the governments only excuse to exist at all!
We used to have a Bill of Rights. Now, with the rights gone, all we have left is the bill.
The article by Mike Rasch is long on hyperbole and short on facts. The link to Picker's blog was more interesting, but his alarmist conclusion is not supported by his presented facts. In fact, he even says as much when he says that the pieces all seem to fit, but there is no final link outside of idle speculation.
If Mike Rasch's article is indicative of the quality of articles on SecurityFocus, then the followers of that site are dumber than the author himself.
This is the same administration...
1) Staged faked news conferences and failed to tell the real reporters
2) Cant decide whether waterboarding is torture
These people will do anything they are allowed to until they are told no and
sometimes even after they are told no.
There is a way around this, if a court says the ISP agreement is what creates
or does not create a reasonable expectation of privacy then the day after
the court rules as such then I will tell my ISP either they change their ISP
agreement to say that my emails are private and will only be disclosed upon a valid
court order or I will find a new ISP that will do so.
Human beings don't need proof to operate. We are intuitive computers, and are capable of seeing where trends overlap to produce synergistic effects. If we weren't, we would be incapable of making a decision to achieve effects larger than the span of our own lives, and yet we are.
Sometimes, "think about it" is an invitation to test your brain and see if it's broken before they write you off as an idiot who really is.
Obviously.
-1 Uncomfortable Truth
Whenever someone screams "They're violating our First Amendment rights!" about some private company being restrictive, I'm one of the first to explain that the 1st protects our right of free expression from Government interference. Converseley, lets say for the sake of argument that I have waived my 4th Amendment rights to my ISP in exchange for using their email service. This doesn't mean the .gov gets to abuse them. Hopefully a half sensible judge will toss this out.
;)
In the meantime I'll just be happy that while my ISP is in the US I don't use their email service. Good luck convincing the service I pay to use out of Norway to give up my email.
"An unarmed man can only flee from evil, and evil is not overcome by fleeing from it." Col. Jeff Cooper
How do you "waive a Constitutional right?", without anyone at least asking you if you mind waiving it?
The higher the technology, the sharper that two-edged sword.
Well, first you make an assumption that all criminals, and all members of al-quaida are sophisticated enough to use encryption. In light of the crap I have seen posted on myspace, youtube, facebook and the like, that is clearly not the case.
Second, I was really making a comment on the interpreting the 4th amendment in the digital age. One of the ways that privacy, though not necessarily 4th amendment protected privacy, is "violated" is by snooping. The question is, where does the 4th amendment kick in? In light of the fact that the Internet is truly public, are we really getting it all wrong with analogizing Internet communications like regular mail.... perhaps they are more like cell phones, where any third-rate jerk who spend $50 on some technology can snoop?
Supposed the government grabs all communications as they leave your ISP? Do they need a warrant for that? Is it even a protected 4th amendment interest? I'd like to think that it is, but I don't know if it really all that much matters what the Terms of Use of your ISP are. The real question is how we are going to overall define what class of communications e-mail and the like fall into. I'd hope that we would err on the side of caution and make the government work to have access, but I see the arguments on the other side as well, some of which (i.e., don't all criminals use PGP anyway?), you have already cited.
Why, I'll even forward it to any address they want.
MSBPodcast.com The opinions expressed here are my own. If you don't like 'em... Think up your own stuff.
Historical precedent for this is the only privileged communication was between a lawyer and client. And the adage, "Two people can keep a secret-- if one of them is dead."
The next step in this line of thinking is to argue conveying *any* information to *anyone* waives expectation of privacy. After all, you told someone.
The next step is mere existence waives any privacy expectation.
The truth is that all men having power ought to be mistrusted. James Madison
Here's the ironic side of this - the Democrats are pretty much in a lock to have the next White House, barring another extreme disaster that sends people running back to Big Brother again. All of these broad, sweeping changes for the power of the White House will only be partially in effect for Bush's term... and fully in effect for Obama or Clinton's term. The Democrats would like to thank the Republicans for giving them such broad power. (Not that I support either of them having it, mind you.)
Libertarians somehow believe that private businesses should be stronger than governments but weaker than individuals.
If they did ask, I bet that most of the US population would just go along with it. Because, Civil Liberties is for "criminals to hide behind", "pinko hippies", "gays", "folks who don't want God anywhere", and any other issue that the ACLU and their sister organizations have taken up.
Why, law abiding citizens do not need Civil Rights!
This country and her Constitution is in trouble my friend.
I prefer Flambe as apposed flamebait.
The Constitution does not grant the Congress or the President the power to read email, so therefor, it is unconstitutional to do so. The 4th amendment affirms the rights of the people, and is not a limitation of them.
This is my sig.
The difference is, when you send out a letter, it takes a deliberate act of intrustion to read the contents, just as it takes a deliberate act of intrusion to read someone's email. If you get a postcard on your hand, sure, then read it. But, that's really more like someone sending you an email by mistake.
This is my sig.
The scary part is that this news is not on any major American news network, or at least with so small printing that I can't even find it. Why does it take a company from the UK to inform us that our own government is bullshitting us again?
Full Tilt
There's a difference between postulating a theory as a theory, offer methods of testing the theory and make it open for discussion, and claiming something as fact and true, without a chance to disprove it. For reference, see science vs. religion.
We used to have a Bill of Rights. Now, with the rights gone, all we have left is the bill.
Welcome to 1984. I live in the US so this dosent affect me, but indirectly it could. It may make the UK govermant want the same thing. I doubt it will be democratically decided though.
Actually, I'd say anything that takes place in public, or over a public network, the governement has a right to observe. I'd even say that wiretapping shouldn't have been given 4th ammendment protection. Now keystroke loggers and spyware constitue an intrusion on your effects, your computer, just like searching your car. These things aren't in plain sight. I'd say anything encrypted or sealed to the outside should require a warrant for parties inside the US, but the internet/phone network are really a public network and frankly no one should expect privacy for things that are done in public. The illusion of privacy on the phone is due to automation, not the lack of the public nature of the medium. Just because no one is likely to look (like in a dark alley in a small town at 4am) doesn't mean you have a legal expectation of privacy. Unlikely to see isn't the same as private.
----- Question authority, but not ours. Hate the man, but we're not him.
They can spy on Democrats, their own people and anyone's and that's why this is more important than firefly diatribes. Without privacy in communications anyone who would bother to stand up for your rights can be identified and punished. Targeting can start in school, before the victim understands the issues or can defend themselves. Anyone who would encourage or aid the dissenter can also be punished. What the current administration is asking for is a tool more complete than Orwell was able to imagine in a paper world.
Imagine, for example, that Martin Luther King Jr. had been identified when he was a Morehouse College, instead of 1961. Do you think he would have been able to withstand such early and sustained attention as he suffered later? As late as the 1980's some asshole decided to prove that King did not deserve his PhD. If a smear campaign had been launched while King was at Morehouse, he would never have made it in to Boston or Crozer. Would it have been possible to recognize a pattern or would society have simply been robbed of a charismatic champion?
It's cases like King's that created the outrage that outlawed domestic spying. We should remember those foul deeds and start the pendulum swinging back towards privacy. What we find today may be worse than what we know about King because technology has made things so much easier to identify, smear and harass.
DMCA, Hollings, Palladium. What might have sounded like paranoia is now common sense.
Only as long as it remains legal to encrypt your mail.
The general populous need to be more aware that plain email is more like a postcard than a message in a sealed envelope though.
"Reasonable expectation of privacy" arguments mask the true cost of tyranny and the public should object to all forms of domestic spying. The right emails do not just fall from the sky onto FBI agent desks so that criminals can be prosecuted. It costs money to read and sort email. It's outrageous to waste tax money on things like that because criminals know how to hide and the machinery will be abused for political purposes. One way to protect the public from that kind of waste and abuse is to demand government obtain search warrents for email snooping. This is what the fourth amendment is all about.
DMCA, Hollings, Palladium. What might have sounded like paranoia is now common sense.
Oh, I'm getting so tired of this nonsense. Our founding fathers would roll over in their graves if they saw how other nations have more rights and freedoms than people in ours.
lol, the word in the image for me is "wiretaps"
Anyone who is a public figure can expect their past to be closely scrutinized. Why should King get a free pass for a PhD thesis that had large sections that were plagiarized from other people's work? I thought plagiarism was supposed to be a mortal sin in academia.
Mea navis aericumbens anguillis abundat
BZZZT. Once again this fallacy rears its head.
The U.S. Constitution is NOT a positive enumeration of citizens' rights. You have a right to do everything except what is specifically forbidden (by laws that we consent to live under). In addition, the Constitution isn't even about you, Mr. Citizen. The Constitution is about what We the People will permit government to do and not do. In other words, we (the people) already have all the rights in the universe*. A few of those we will consent to give for the purpose of living more-or-less harmoniously, and a few of those we will permit to the government. All else we reserve for ourselves and for the individual States in which we consent to live.
* So yes, I do have a Constitutional right to broadband Internet access.
Our intelligent designer has never created an animal that we couldn't improve by strapping a bomb to it.
You're absolutely right, and in the Constitution it explicitly states that rights are "not restricted to those herein enumerated," yet somehow "strict constructionists" keep saying, "That right is not specifically stated in the Constitution, therefore it does not exist."
The living have better things to do than to continue hating the dead.
If your electronic mail is not encrypted, then one might argue that it is unreasonable to expect privacy. It sucks, but there's some truth to the idea that we all know already that our ISP can monitor any unencrypted traffic we send, and that they reserve the right to.
I don't know where people get this notion that if it's possible for the government to do something, they have a right to do it. If I don't lock my door when I leave the house I'm not implicitly inviting the police into my house and surrendering my Fourth Amendment rights. If I make a call to my mother on the POTS network they can't simply listen in (recent fascist precedents notwithstanding) just because our voices are unencrypted.
There is a reasonable expectation of privacy that still applies to plaintext communications. Yes it's possible to do packet inspection on my emails, hold my mail up to the light, etc. and that might be relevant if we were talking about criminals doing these things. Not the government.
I'm getting sick of writing this post over and over and over again. If you had told me ten years ago that I would even have to make these arguments in my lifetime, I would have laughed in your face. Hopefully in 2008 someone sane will enter the White House, and we can look back on these threads and conversations and laugh. Unless this idiot holes himself up there and tries to pull off a Musharraf of his own which wouldn't surprise me at this point.
Wow, you are reading the wrong sentiment into what I said. I was making an amusing (to me anyway) observation, not an argument.
To be clear, I'm dead set against the government reading my email, encrypted or not. All I was trying to say is that the phrase "reasonable expectation of privacy," on which the legal test is currently based, is a shitty test, as what a reasonable person would "expect" the government to do is to violate you in any manner they can get away with.
In other words, this is an unconstitutional policy that is wrong, and that is exactly what I expect from my government and my ISP. I consider it reasonable of me to expect that, as they have demonstrated their disregard for civil liberties on numerous occasions.
In that sense, it is not reasonable to expect your email to be kept private -- it is still, however, reasonable to demand that it shouldbe kept private.
I was lamenting the present state of affairs, not making a case for them.
If fate makes you a motorcycle, you become a motorcycle.
ISPs are not government entities, though I get that in the digital age, the line of who is a state actor and what is a state action is less clear. So there is no 4th amendment protection against what the ISPs do with your data (though there may be some statutory or common law tort theories for privacy violations). ISPs can provide you service under any terms they see fit, and you certainly don't have a constitutional right to broadband internet access.
Once an ISP begins providing the government information (or other services) without a warrant through some deal with the government, they become an agent of the government. At that point they are subject to upholding the Constitution. If this were not so, then government could hire any agency - Blackwater - to do anything they'd like - police US citizens - and that agency would have no obligation under the Constitution to not abuse our rights. It doesn't take a rocket scientisi to figure out where that would go, and it doesn't take one to figure out the intent of the 4th Amendment (or the rest of the Bill of Rights and the Constitution).
Though with the abuses we've seen in the past 8 years, maybe it does?
PGA
Hopefully in 2008 someone sane will enter the White House...
I have a strong suspicion that the next President, whoever she may be, will be briefed on all this stuff and will determine either that 1) the real threat is actually so great that the surveillance programs should continue, or 2) the conduct of the surveillance programs is actually more in keeping with accepted American principles than is commonly believed among the public. I predict that for at least the duration of the next presidential term, we will not hear of any surveillance program being shut down by order of the President.
Evil is the money of root.
The next president will be slow to change anything laid out by this current administration, no matter what the public wants and how anti-American / moronic said law / policy is. This is the current problem with the democratic congress. People voted overwhelmingly for "change" with this past election but what really had changed? Arguably nothing at all.
Congress and the next president - democrat or republican - despite their belief that the current administrations policies are un-American, will be afraid of appearing weak and won't do a damn thing.
1) the real threat is actually so great that the surveillance programs should continue
I assume the implication here is that the threat is much greater than we, the people, know, and that the surveillance has been more successful at stopping the threat than we know. Well that would be rather odd given that Bush's PR team takes every possible opportunity to play up the threats and their successes, rarely even waiting long enough to figure out whether their PR fluff will hold up once the facts are brought in court. If there was such a great threat, and we were so successful at stopping it, I'd think they could do better than half-assed prosecutions against people who are at best tangentially related to al Qaeda and which end up mostly falling apart as examples of how much we need them.
2) the conduct of the surveillance programs is actually more in keeping with accepted American principles than is commonly believed among the public.
If their conduct is "in keeping with accepted American principles", then why do they keep trying to acquire -- or exercise and justify post-facto -- extra-Constitutional powers? Unless the American Principles you're talking about are "apathy" and "a willingness to abandon their freedom at the first sign of danger", I'd say trying to weasel out of the 4th Amendment is not in any way, shape, and form "in keeping with American principles". Your suggestion that despite this public appearance of complete disregard for the Constitution, behind closed doors it's actually a program very respectful of American's rights, and that they're keeping this a secret to be rather hard to take.
Really. The government is clearly desperate for us to believe that the threat is great, they are the only ones who can save us, and that in doing so they are still protecting our rights. It's kind of silly to think that these things are true but nevertheless the government cannot -- not won't, can't, because they are clearly trying desperately to -- show these things to be true.
But then again, I was around when they were desperately trying to prove that Iraq had WMD and would jump on anything and everything they could that could support that idea, even if it fell apart after further investigation (Trailers of Mass Destruction, anyone?) This "take it on faith that the spooks know everything and just can't show us how awesome they are" thing is a horse that won't run anymore.
I predict that for at least the duration of the next presidential term, we will not hear of any surveillance program being shut down by order of the President
I agree, but not for any of the reasons you mention. The fact is that whoever takes up the mantle of President next is most likely going to be just as hungry for power as the current President. First sign: They want to be President. They don't actually mind Bush's huge power grab for the executive branch, because they're hoping that they will be the next ones to benefit. This is why the opposing party's response to these things is mock outrage and zero actual action.
Then again I lost my naivete on the "everything will be great once the other guys get power!" thing even before I lost it about the "oh don't worry your government has everything under control -- despite all appearances" thing.
The enemies of Democracy are
Considerably more germane to how the US is supposed to work than a religious quote, the constitution has this to say:
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.
Notice how a warrant has to be issued describing the "place" to be searched. The beginning of the amendment specifies "houses", but the rest is more general - the implication is that your shed, your place of business, someone else's coffee kiosk or bench or "mailbox of letters" or "container of packets", all are protected against unreasonable search. What is unreasonable in this context? It's right there, just read it: "right of the people to be secure" - that's unreasonable to violate. If you're not secure, you've been violated unless (a) they have probable cause and (b) they have a warrant and that warrant is supported by oath or affirmation.
With regard to communication modalities, at the time, what they had for remote communications was basically paper. Please note the explicit constitutional reference to the security of papers. You could write something down and send it elsewhere. This is where the idea that your mail should be secure comes from. Well, today, we have other mechanisms. Do you think that in ANY rational world, if the authors of the first amendment knew that you could send messages over wires or through the air, that they would have said, "Oh, well, in that case, you have no right to be secure? You can't base such an argument on how "easy" it is to read such communications, because there's nothing as easy to read as the mail is.
Those authors weren't trying to enumerate the "only" places you were to be secure, they were trying to say you should be secure PERIOD unless... oath, probable cause, warrant. I read the "persons, houses, papers and effects" as a general set of guidelines that is broadly inclusive; that reading is particularly supported by "effects", because that word is about as non-explicit as you can get in the language of the day.
Privacy is the social boundary that the citizens agree shall not be crossed. Closed doors shall be knocked upon; locked or not. Skirts shall not be looked up, short or long. Envelopes shall not be opened, unless addressed to you. Diaries shall not be read except by explicit permission from the author. These things are all important cornerstones of how society works. Not a one of them carries the addendum "unless it is easy" because it is obvious to each and every one of us that the existence of such boundaries is what makes life as an individual reasonable.
To the extent that the government argues that "because it can", it should be allowed to, we are faced with an intrusion that is both antisocial and constitutionally wrongheaded, as well as, I would argue, constitutionally anticipated and explicitly forbidden.
I've fallen off your lawn, and I can't get up.