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Court Refuses To Rule On ECPA Warrantless E-mail Searches
utkalum writes "After Steven Warshak's indictment and conviction on charges of mail and wire fraud, money laundering and other federal charges, he learned that key evidence in the case was obtained by the government under a 1986 law permitting no-warrant searches of email communications stored for longer than 180 days. He also learned that, despite the Electronic Communication Privacy Act's requirement that such searches be disclosed to the suspect no more than 90 days after they were commenced, the Government simply couldn't be bothered to comply. Now, the US Court of Appeals for the Sixth Circuit has refused (9-5) to hear Warshak's constitutional challenge to the Act (PDF), claiming that the question raised is 'not yet ripe' for adjudication.
It's worth noting that the court also vacated an earlier injunction against using that act to read the e-mail of other people in Warshak's district. Read on for an excerpt from the ruling.
'Not only do "we have no idea whether or when" such a search will occur but we also "have
no idea" what e-mail accounts, or what types of e-mail accounts, the government might investigate ... That uncertainty looms large in a debate about the expectations of privacy in e-mail accounts. The underlying merits issue in the case
is this: In permitting the government to search e-mails based on "reasonable grounds," is 2703(d)
consistent with the Fourth Amendment, which generally requires "probable cause" and a warrant
in the context of searches of individuals, homes and, perhaps most analogously, posted mail? The
answer to that question will turn in part on the expectations of privacy that computer users have in
their e-mails — an inquiry that may well shift over time, that assuredly shifts from internet-service
agreement to internet-service agreement and that requires considerable knowledge about everevolving
technologies.'
Its ok to break the law as long as your catching a bad guy right?
unzip; strip; touch; finger; mount; fsck; more; yes; unmount; sleep
This doesn't apply at the White House, apparently they don't archive their email.....or at least you can't prove that they may or may not......
Unix, an obscure operating system developed by bored researchers in an attempt to get a better game playing experience.
Is it like one of those cheeses they leave in a cave for a decade? Or a fine liquor that ages for half a century?
Unless we own our personal information, we will have no privacy and no freedom. If I know *EVERYTHING* about you and have a few henchmen, then I can surely control you and eliminate your freedom. No one is perfect. You must have some weakness that can be approached. Some way to be bribed? Or surely you've made some embarrassing mistakes that could be leveraged against you? What's your hook? Gambling? Booze? Whatever it is, if I know enough about you, then I can eventually make you do whatever I want.
Is there a solution? Yes. We must own our personal data. It cannot belong to the companies to buy and sell like oil futures and shares in gold mines. The strongest form of ownership is possession--the famous 9 points of the law. Once you have possession, then it is up to the other side to show they have some claim on your personal property (in the form of information in this case).
If any company wants to store some information about me, they should be required to store it on *MY* computer. They can sign it so that I can't tamper with it. That's a trivial aspect. However, whenever they want to *USE* my information, they should be required to tell me why. This can mostly be automated in the form of my personal privacy preferences, and for most queries there is no reason I should stop them--but I should always be free to change my mind.
(I only see one other alternative that preserves any personal freedom. That would be the total exposure of everyone's personal information. It would be a kind of war, but at least all of us could be on a kind of equal footing. Yet however much I would like to know the full truth about Dubya Bush, I don't think that's going to happen.)
Freedom = (Meaningful - Coerced) Choice != (Speech | Beer^2), and sad sock puppets' bad mods avail them naught.
Court of Appeals 540 Potter Stewart U.S. Courthouse 100 East Fifth Street Cincinnati, Ohio 45202 Phone: 513-564-7000
Anyone who is going to tartly respond to this inflammatory statement would do well to read the link contained in the statement... 'ripeness' is an important legal concept, and it is clear that the matter is, as yet, unripe.
In order for the 'ripeness' qualification to be met, decision on the claim must affect the outcome. It's clear from reading the link that the outcome would not be affected, since the government is unlikely to perform another ex parte search; and even if they did, it wouldn't matter, since the guy who was indicted knows full well that he is under indictment, and would be even more of a fool to leave any more emails hanging around for the government to search.
As for the other issues, I'll not comment, since I don't think my words would bear the fruit.
"Trolls they were, but filled with the evil will of their master: a fell race..." -- J.R.R. Tolkien on Olog-hai
You're guilty and there is no way out of it on a technicality.
The only concern for the rest of us is that we have so many damn laws on the books that many of them are starting to conflict.
this will further erode citizen respect for the rule of law
Not to mention respect for the courts and gubmint
-which I imagine is already pretty low given the current slide towards a fascist corporate oligarchy (I know that's a little redundant)
-I'm just sayin'
The 9th Circuit could have decided the facts presented in this case (the close opinion is proof enough of that), but they didn't. So the poor injunction-seeker is denied his injunction because his legal claim is not ripe for adjudication.
Sooner or later, some dirtbag is going to be charged with a crime and evidence is going to be collected via the challenged Act. The dirtbag will file a motion to suppress, and an appeal will eventually result from that (with the dirtbag's liberty hanging in the balance).
Sooner or later there will be a ruling. Everybody'll just have to wait.
What has changed since RFC 1123's clarifications of SMTP?
There really should be no expectation of privacy in e-mail. I've been hearing since at least 1989 that e-mailing sensitive information is about as secure as writing it on a postcard--and I never even used e-mail until 1998! It's no more private today than it ever was.
If you want to send evidence of your criminal activity by e-mail and keep it secure, learn to use encryption. Or better yet, don't, and get convicted and sentenced. Please.
I believe in the 4th Amendment, but I really don't think it applies here.
After FISA, this does not surprise me at all.
Another sad day for America.
How will it all end?
The 9th Circuit could have decided the facts presented in this case (the close opinion is proof enough of that)
Doubtful, since the opinion was produced by the 6th Circuit.
Life is not fair. We hope for fairness and justice and are really let down when it doesn't happen.
Fairness and justice are a promise we've been given as children.
After a number of years of being told how fair things should be, we are then taught that we shouldn't quite expect that.
How will it end? It won't be all that different than it is now. People in power will give a hard time to those they don't like, undue favour to those they do like and most everyone else will be ignored. They will just have a whole lot more power than they did before.
Before everyone expends all that energy being outraged, the relevant statute is here.:
While some of its aspects are kind of on the border of due process, it is not a generic "no warrant needed" law.
my position is: why does anyone expect communications going out on an open wire to be safe from snooping eyes? or even more absurd: why does anyone trust the government to ensure this illusion of privacy?
if you have anything of secrecy, encrypt it, or keep it off the net
i'm not excusing the governments behavior, but what i am saying is that the entire subject matter of privacy on the internet is absurd. at every node someone can snoop, not just the government. isps, criminal interests, corporate interests, just plain random goofballs
its NOT like the government coming into your home and ramsacking your stuff behind a locked door. its you piling your stuff out in the middle of main street and expecting the local police to ensure no one looks at it or takes it, and then crying bloody murder when a cop looks at it. you put it out there, why do you expect privacy? i don't get it, i never understood why this subject matter works people up into such a lather
to me, as soon as i hit send in my email box, if i haven't encrypted it, i EXPECT it to be seen by someone else
its not like i've cynically given up on government, its rather that i recognize the technology is not securable, regardless of whether the government ensists on absolute privacy in electronic communications or is a fascist state who insists on looking at your every word. either way, i don't see how the technology of the internet confirms a position of privacy. its just better to assume someone else is going to see it, right?
so i'm either totally crazy or way ahead of the curve, i don't know
everyone gets so emotional about this issue, and i just don't understand the panic and hysteria over losing a protection that never existed in the first place, or ever could possibly exist, regardless of the law being ultrafascist or ultraprotectionist
intellectual property law is philosophically incoherent. it is your moral duty to ignore it or sabotage it
I freely admit to being a Constitutional junkie, but it seems to me that Steven Warshak's lawyers are grasping at shrinking straws. Their client is eminently, if not braggardly guilty of the crimes he was charged with. There was no statutory misconduct on the part of police or prosecutors in this case. No amount of legal Enzyte will raise (erect?) any reasonable doubt about his guilt. I say send him to jail, confiscate his ill-gotten gains, redistribute them to his victims, and move on.
There are far more ominous Constitutional issues being contested today than the legal pimpings of this huckster's lawyers.
Meanwhile this guy is in the slammer after the Feds violated his rights AND didn't even comply with what few limitations were imposed on an unconstitutional law. Just great, maybe when he's old and grey they'll pull their heads out their asses and fix it. The conviction should have been tossed as a matter of routine and if these judges weren't corrupt and actually upheld the law it would have been. If you're expecting justice in the USA forget about it. It is no longer a nation of laws, especially w.r.t. the government abusing your rights.
I don't have much sympathy for this guy, he's a criminal, but these judges make me want to puke. Uphold the constitution you jackasses!
The NSA hoovers up EVERYTHING and that can be searched at will now and the court won't even look at it if they do and don't even tell you about it within the period specified by law. Jesus, this IS a police state, and you watched it happen live.
I should have a reasonable expectation of privacy in my e-mails so far as my service providers and others involved in transporting it.
There is always the chance of some sort of "man-in-the-middle" attack, or misdirection of e-mail or even of the technoids trying to chase down a problem seeing random e-mails on occasion.
BUT, without probably cause and a warrant I should have a complete expectation of privacy in my e-mails in reference to the US federal and local governments.
Unless it is addressed to them, they should only be allowed to intercept or inspect my private communications pursuant to a warrant.
Anything less is NOT what I put my ass on the line for, fighting to protect this country and it's Constitution. That Constitution that I swore to protect from all enemies, foreign and domestic, clearly spells out that I should be protected from my government spying on me or seizing my property or communications.
The current regime does NOT play by the established rules, and simply makes up their own as they go along, despite clear precedent.
We, the people, need to take back control of our country from those we hired and elected to run it for us.
--Tomas
bye bye gmail.....youtube first gmail second
hey google, stop archiving my personal communications, and i'm not saying please anymore!!!!
Ambient Transparency?
http://evolvingtrends.wordpress.com/2008/07/10/complete-transparency-or-your-money-back/
Wake up people. If you don't want your email read, use PGP/GnuPG. Trusting courts and politicians to "do the right thing" is folly.
Now, the US Court of Appeals for the Sixth Circuit has refused (9-5) to hear Warshak's constitutional challenge to the Act (PDF), claiming that the question raised is 'not yet ripe' for adjudication.
Fuck you, I have a right to challenge this law.
See you in the SUPREME COURT. Yes, if they refuse to hear this in appeals you CAN bypass them.
Support my political activism on Patreon.
Here it is:
http://fyngyrz.wordpress.com/2008/06/16/on-privacy/
I've fallen off your lawn, and I can't get up.
i'm going to dress up like a transexual and walk across town. however, as soon as i go into the privacy of my own home, no one is allowed to know i dress up like a transexual anymore
that's what you are trying to tell me
once it gets out there, its out there. it can't be taken back. sure, the law can hem and haw about what you should or shouldn't do with information that is not legally yours, but why do you think that actually protects you? if you put it out there, you've exposed yourself. beginning and ending of the story, regardless of the law
howabout this: don't expose yourself in the first place. dress up like a tranny in your bedroom, and don't go outside
don't expect an open wire to have the same philosophical and technical (regardless of legal) expectations of privacy as your bedroom
this entire issue is shortcircuited by this observation. the entire discussion of the law is simply moot
intellectual property law is philosophically incoherent. it is your moral duty to ignore it or sabotage it
From the ruling:
"The government sought permission from a magistrate judge to require Warshak's internet service
providers--NuVox Communications and Yahoo!--to turn over Warshak's account information,
"[a]ll [l]og files and backup tapes" and the contents of e-mails that had been "accessed, viewed, or
downloaded" or that were more than 181 days old."
Why were his emails still available to government in the first place? Does this mean that Yahoo maintains copies of every email sent through its system for time immemorial? Looking at both Yahoo's Privacy Policy, and its policies concerning email in particular, I see nothing about archiving emails or the length of time the archives are maintained. Should I infer from this case that any email anyone ever sent to anyone on Yahoo is archived somewhere and available for government perusal at any time?
I know there is an ongoing controversy between ISPs and the Justice Department concerning the archiving of logs containing login information, but how many Yahoo users do you think might be surprised to hear that all their email is archived, too? Why isn't Yahoo required to tell its users about these policies, which seem to raise much bigger privacy concerns than whether they might send me an "Alert" once in a while?
my position is: why does anyone expect communications going out on an open wire to be safe from snooping eyes? or even more absurd: why does anyone trust the government to ensure this illusion of privacy?
It's not only about what government does, it's about what government is *supposed* to do, legally.
:-)
The government is *not* supposed to snoop on your communication without a warrant. Period.
Of course you should be aware of the fact that they're going to do it anyway... and that any idiot with at least a litle clue will also snoop on your mails, if he can. But the fact that anybody who can do it, does it, does not make it legal. They should (theoretically) be punished, both the government and the idiot(s).
And here comes the clou: I *know* you're not going to go after "Joe Random with a root password on a node" -- it's not worth it. So the punishment of the idiot still remains "theoretical". But you should *always* go for the government and make the punishment real, if they do something illegal!
Why?
Because having the government illegally snoop on your communications occasionally will make it -- sooner or later -- to want to do that *always*, *legally*. You're... well... "spoiling" your government, so to speak
It's like giving in to a child when he cries because he wants to have a (proably unexpensive) toy, but which you decided not to buy in the first place. Giving in would "spoil" the child pretty mych the same way you would "spoil" the government by refraining from brining its illegal actions to the court.
And what does a spoiled government (or child) want in the end? Exactly: more and more of whatever it is you spoiled it with. So one day you might wake up and realize that your government got so used to being able to snoop into your traffic, that it somehow believes having a "right to snoop". And that's when it passes laws to prohibit encryption -- to protect its "rights".
And why could it all happen? Because you didn't already object the very first time it snooped on you.
life's indifferent -- that's what makes her such a bitch :-)
(ok, sorry, I'm off topic... couldn't resist)
I like gambling, I like booze. I vote, often doing all three at once!
But if I tell people the truth about my multifaceted personality, they wouldn't vote for me (because I would tell them things they don't want to hear).
So you get "politicians" instead. They get to decide what the rules are, and they are all pandering to "the people". Almost by definition you get liars to "represent" you. The actions of liars and idiots are almost indistinguishable, so I guess there is some justice there. (e.g. "The people get the government they deserve")
Democrats: "Vote for me, I'll give you someone else's money!"
Republicans: "Vote for me, I'll give your money to my friends!"
Libertarians: "Vote for me, it's perfectly harmless!" (because I never win).
Too many idiots get to vote. If we had BOTH compulsory voting, AND a minimum qualification-to-vote test, we might be better off.
I doubt as many people would come up with excuses to not vote as come up with reasons to avoid jury duty. (Who gets on Jury duty is a whole-nother topic...)
This issue is a bit more complicated than you think.
SO basically what they're saying is: "We're not going to give you due process or follow the law (which we have sworn to uphold) because we know what the government did was wrong and illegal and we know you're right and we would have to throw this case out, and we want to wait until it gets made "retroactively legal" (which is unconstitutional) or the system deteriorates further until it won't even matter, and we can't risk having those in power be angry with us."
Tell us how you really feel.
Vote for whoever you like, for whatever reasons you like. No one tried to talk you into anything.
I just wanted you to know that your reasoning was flawed (and still is); fwiw, ymmv, etc.
Oh, and Bush is a crook. :P
Foiled again.
My handlers at the Obama campaign won't be happy about this. They warned me about getting called on bullshit by people of above average intelligence. I expect they'll cut my latte ration. I will probably have to ask my liberal professor what a pun is, too. I wish I wasn't such a moron...
Seriously, though... Read this thread again, then adjust your meds.
Curse you, Maddox!!!
Your statement is true and mine is not entirely true.