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.'"

Comments

Re:"Land of the Free"

[rvw]

"The government".... Does that mean Bush and his mates can monitor all Democratic email traffic? That would be handy for the upcoming elections!

What privacy?

[cenonce]

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.

The far more impacting (and interesting) legal question is how the courts are going to view the 4th amendment (and others) in light of the way communications are stored for eternity on the internet. A traditional approach seems unwise, since the way ISPs word their terms of service make it so your data practically falls under the "open fields" doctrine for purposes of search and seizure. On the other end of the spectrum, I don't want police investigations entirely shut down just because we want heightened protections for data that we keep in essentially insecure methods.

If you are that worried about privacy, use PGP or GPG.

Re:"Think about it"

[ajs]

Alarmist? Here's what he said:

What is important in this case is not the ultimate resolution of that narrow issue, but the position that the United States government is taking on the entire issue of electronic privacy. That position, if accepted, may mean that the government can read anybody's e-mail at any time without a warrant. This seems to be a fairly reasonable assessment of the situation. The assertion in this case is that electronic mail has no reasonable expectation of privacy. If that's upheld, then the 4th amendment doesn't apply.

Your comment about "followers" of Security Focus is way off base. Outside of the world of artificially constructed arguments on TV, people aren't "followers" of news outlets. We are readers or subscribers or viewers, but we're not "followers." You might want to re-evaluate how you select and scrutinize your news.

PS: I'll note that I've been saying for years that it's imperative for stand-alone personal MTAs to remain viable, and this is why. Routine, passive end-to-end encryption is the way that we make this impractical.

Re:Postcard/email analogy...

[conlaw]

The Sixth Circuit panel that decided the case did not agree with your view that one does not have a "reasonable expectation of privacy" with regard to email being stored by the ISP.

It is true ... that by sharing communications with someone else, the speaker or writer assumes the risk that it could be revealed to the government by that person, or obtained through a subpoena directed to that person. ... The same does not necessarily apply, however, to an intermediary that merely has the ability to access the information sought by the government. Otherwise phone conversations would never be protected, merely because the telehone company can access them; letters would never be protected, by virtue of the Postal Service's ability to access them; the contents of shared safe deposit boxes or storage lockers would never be protected, by virtue of the bank or storage company's ability to access them.

The entire opinion can be found at http://w2.eff.org/legal/cases/warshak_v_usa/6th_circuit_decision_upholding_injunction.pdf