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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.
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.
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'
Disregard my mangled post :(
Should read:
Court of Appeals
540 Potter Stewart U.S. Courthouse
100 East Fifth Street
Cincinnati, Ohio 45202
Phone: 513-564-7000
After FISA, this does not surprise me at all.
Another sad day for America.
How will it all end?
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
Who are you to decide that? Like I said in a post on a similar topic:
... 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 canonical user interface icon for e-mail is... a sealed envelope. Even ISPs will present their e-mail services with such an image.
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.
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."
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.
Here it is:
http://fyngyrz.wordpress.com/2008/06/16/on-privacy/
I've fallen off your lawn, and I can't get up.
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?