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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.
"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.
That's pretty obvious, if you think about it.
Because, of course, terrorists are using unencrypted email to plan their misdeeds.
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.
Perhaps you and the GP should read TFA and become aware of some of the issues here.
Oh, and for the "it's the Register, pooh pooh" crowd, the original FA was frist psoted on Security Focus.
No folly is more costly than the folly of intolerant idealism. - Winston Churchill
A'la'ih Do'neh'lini
No folly is more costly than the folly of intolerant idealism. - Winston Churchill
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.
Everyone knows by now that they don't resort "courts" or "laws" in those kind of cases.
The Farewell Tour II
In other words, the snagging point is the definition of "expectation of privacy" -- but the situation is really quite simple: The average user simply expects privacy, but the government is trying to force them to abandon that expectation, so they can then go and install ubiquitous e-mail surveillance without violating the letter of the US Constitution. The government is trying to win by arguing semantics, so what I find hardest to believe is that anyone is taking all this blatant skullduggery seriously. I've seen better weaseling from schoolkids trying to avoid homework assignments.
E-mail is electronic, so the message is NOT viewable in transit without making an effort to intercept and decode it, even if the encoding is just ASCII. It's not like mailing a postcard, it's like sending an electrically encoded text message over a packet-switched data network where the only expected viewing point is at the intended recipient's terminal; this is how the e-mail protocol was designed to work. Sure, a malicious party can read it because it's not encrypted, but someone can easily slice open a postal mail envelope and read the contents of that, too.
The bottom line is, since a non-trivial effort has to be made to read the contents, and since the service has always been presented as a "sealed letter", the average user is not unreasonable in expecting privacy.
No problem... let them snoop. Now I'll just be twiddling the "Encrypt and sign all outgoing email" box on my MUA, and finally start using GPG full-time for all of my incoming and outgoing email, instead of with just my friends and close colleagues.
There are plugins for Evolution, pine, mutt, Thunderbird and just about every other Mail User Agent you can find out there.
Another great benefit, is that I can automatically block/quarantine/delete any and all email that does not contain a gpg-signed component (i.e. 99.999% of all email out there, mostly spam). dspam does an amazing job, but being able to just reject it at the MTA level would be great.
And for those that wish to converse with me, please make sure to use my GPG key to do so (also available here with detailed instructions).
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
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.
Here is another point I miss in the e-mail/postcard analogy. Even if you accept that e-mail is more like a postcard than a sealed envelope (which I agree is a false analogy and used as an excuse to erode our expectations of privacy), how does that justify routinely reading messages? Post office workers may read the occasional postcard for a laugh, but who would expect a government (or any other organisation) to routinely copy every postcard and scan it for illegal or suspect content?
The truth is that all men having power ought to be mistrusted. James Madison
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 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
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.
The entire opinion can be found at http://w2.eff.org/legal/cases/warshak_v_usa/6th_circuit_decision_upholding_injunction.pdf
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.