Slashdot Mirror
Federal Judge Says E-mail Not Protected By 4th Amendment
DustyShadow writes "In the case In re United States, Judge Mosman ruled that there is no constitutional requirement of notice to the account holder because the Fourth Amendment does not apply to e-mails under the third-party doctrine. 'When a person uses the Internet, the user's actions are no longer in his or her physical home; in fact he or she is not truly acting in private space at all. The user is generally accessing the Internet with a network account and computer storage owned by an ISP like Comcast or NetZero. All materials stored online, whether they are e-mails or remotely stored documents, are physically stored on servers owned by an ISP. When we send an e-mail or instant message from the comfort of our own homes to a friend across town the message travels from our computer to computers owned by a third party, the ISP, before being delivered to the intended recipient. Thus 'private' information is actually being held by third-party private companies."" Updated 2:50 GMT by timothy: Orin Kerr, on whose blog post of yesterday this story was founded, has issued an important correction. He writes, at the above-linked Volokh Conspiracy, "In the course of re-reading the opinion to post it, I recognized that I was misreading a key part of the opinion. As I read it now, Judge Mosman does not conclude that e-mails are not protected by the Fourth Amendment. Rather, he assumes for the sake of argument that the e-mails are protected (see bottom of page 12), but then concludes that the third party context negates an argument for Fourth Amendment notice to the subscribers."
Wow, best to stop using FedEx and other *private* companies to send mail then.
How we know is more important than what we know.
I cannot see how this won't be overturned on appeal. People have a general expectation of privacy in regards to their e-mail, and the fact that it's being physically hosted somewhere doesn't defeat that.
It's a real shame that email encryption never really hit the mainstream.
As a bit of an aside, does it matter if you try to make the data private via encryption?
There could be an interesting relationship here: If you claim (probably rightfully) that you own the copyright to the 'content' in question, and encrypt it, does this mean that it would be unlawful for anyone to try and decrypt it under the DMCA?
Mossman is a traitor.
Circumcision is child abuse.
The Government does have to get a warrant to open your mail. Don't they?
To a Lisp hacker, XML is S-expressions in drag.
...your medical records aren't private, either. When you use a hospital or a doctor's office, you're not in your own home, and your records of the visit are stored at the facility. This judge is a moron.
Ed R.Zahurak
You know, oblivion keeps looking better every day.
when we send mail via USPS, since the mail isn't technically in our homes while it is sitting in the post office, that the government can read it without violating A4?
and I'll stay out of law.
deal?
I know my field. its CLEAR you don't know my field. I don't know your field. why do you have to 'rule in' on things that make us laugh (or cry) at you, due to your TOTAL lack of understanding.
hang on a minute. what if this guy DOES know what's going on and yet he still wants to have government prying on your email?
I'm not sure which is worse; a clueless idiot in robes or a smart one who PLOTS against the basic US constitution, stealing our rights bit by bit.
--
"It is now safe to switch off your computer."
While you have the car in your possession, no. But, once you turn it in, yes.
And, that is a bad analogy.
There is no "-1 offended" or "-1 you don't agree with me" mod options for a reason.
It's not about transportation, it's about destination.
Plus there's no expectation that FedEx would (or should) have access to the *contents* of your mail, but an ISP-hosted email account, currently, does have full access to the content, with your tacit approval.
There are options, potentially, for the more privacy minded:
* POP email with "delete from server" active will limit how much of your mail your ISP has access to.
* Run your own mailserver.
* Develop a mailserver that stores mail in an encrypted folder and requires your key to access.
That last one could also go a long way to helping solve the issue where private companies have to host their own mail and forbid employees from using other accounts solely to avoid the exposure of proprietary communications to third parties (the ISP). It also shouldn't be too difficult to set up...
Recently in the second Circuit, it has been ruled that gmail users do have an expectation of privacy in their e-mail account. http://online.wsj.com/public/resources/documents/Bear1.pdf. Here the Court ruled that the warrant was too broad since it didn't restrict the inspection of e-mails that were unrelated to the investigation.
In light of both rulings, it may not prevent the government inspection, but could be grounds to suppress. Furthermore, the Stored communications act prohibits a warrant for this type of information unless, "offers specific and articulable facts showing that there are reasonable grounds to believe that the contents of a wire or electronic communication, or the records or other information sought, are relevant and material to an ongoing criminal investigation."
Fight Spammers!
I run my own mail server, you insensitive clod!
of course, the 'ever so smart judge' does not know this fine nuance.
the fact that packets travel along routers, bridges and gateways means that some of your 'property' is stored/forwarded outside your 'house'. BUT SO WHAT??
US mail travels in a store-forward way. are they allowed to read your mail because its 'not in your house, at the time' ?
finally, why is this moran allowed to concluded that ALL mail sits on 'webservers' ? even if it IS web-based, oftentimes its pop/imapped to your home system and then deleted off the server. or maybe you run old style port25 mail and it truly does go point to point and never 'sits' on an ISP for more than transit-time.
I'm really annoyed by judges who make decisions based on FALSE assumptions and lack of understanding. this judge should be fired or even tried for treason. his crime is THAT great; its a threat to some fundamental privacy that the constitution (once) allowed us.
those who seek to over-rule constitutional laws ARE traitors. look it up.
--
"It is now safe to switch off your computer."
I see that the electronic communication privacy act of 1986 is being ignored once again.
http://en.wikipedia.org/wiki/Electronic_Communications_Privacy_Act
By that logic, that judge's emails should be open to being searched.
When a person uses the Internet, the user's actions are no longer in his or her physical home... All materials stored online, whether they are e-mails or remotely stored documents, are physically stored on servers owned by an ISP
Yes, just like:
- Mail
- Safe deposit boxes
- Bank accounts
- Voice mails
- Telephone conversations
- Storage units
As far as I know, all of the above things are subject to the 4th amendment. WTF???!!!
Just out of curiosity, what are the privacy rights on say,a storage facility.Can the cops just walk on in and open things up, or do they need a warrant?
Oh certainly, if everyone you get email from uses PGP, you're already good.
I'm talking about keeping all the plaintext and/or HTML mail you get from normal people/banks/mailing lists and having the mailserver know to automatically encrypt the content of new messages with your public key. An ISP running such a server could then HOST your normal mail without ever having access to it, or without ever implicitly getting your permission to access it.
Get with the times, man...Juno is the ISP of the future!!!
Bill Clinton: Pimp we can believe in. - The Shirt!!!
A postcard is public, a letter in an envelope is private.
A postcard isn't a good analogy. If I send a postcard, lots of people might see what is on it by simple chance. For example, the mail carrier might see it when they pick it up. In order for someone to read an email they need to go out of their way to access it in some form. That such access is easy doesn't say much. It is easy for someone to access physical mail often when people use a physical mailbox in the suburbs. Moreover, anyone in the postal service can easily access the internal contents of your mail without getting caught (steaming open a letter is really easy and hard to notice). That doesn't mean that the government has a right to read all my physical mail without a warrant. Just because something is possible doesn't mean that it is considered either normal or acceptable practice.
The judge ruled that the warrant can be served on the third party without notifying the sender. This would be akin to serving a warrant to one's employer to search one's workspace.
Or, serving a warrant on your friend to access your friend's computer to get emails sent by you.
I think this ruling is on shaky ground due to the concept of "reasonable expectation of privacy".
There is no "-1 offended" or "-1 you don't agree with me" mod options for a reason.
Not to get all ad hominem or anything, but this judge was apparently nominated by G.W. Bush and is an LDS, according to Wikipedia. We should be expecting these kind of rulings for a long time: Bush got a lot of his guys in before he lost his political capital. Civil rights, schmivil schmights.
Zo
The fine article refers to a ruling that says you don't have to be notified if your email is accessed. It doesn't talk about if it is legal or not to access your email. I guess the theory being that if your mail is stored "publicly" at an ISP and that someone has the legal right to look at your mail, they don't have to tell you that you have been snooped on.
The article doesn't seem to make the distinction between mail at rest (on a mail server) and mail in transit (passing on the wire) so I don't know if running your own mail server makes any difference here or not. It would at least reduce the exposure time for "snapshots" to be taken and disclosed. If your mail was on your own server you would at least have to be approached by a court with a subpoena or similar that demands access, which you would probably notice.
Encryption is of course, the answer.
I would like a warrant for the Senates email accounts please... All of em...
The title of the article is pure sensationalism.
E-mail is still protected by the 4th Amendment.
The ruling was that there is no 'constitutional requirement of notice to the account holder' for items in possession of a third-party.
Mod parent up.
I am in shock that we would even debate this. The judge is wrong, end of story. If you can't take the time to get familiar enough to make an adequate ruling, then you shouldn't be ruling on it. Why can't we challenge the courts ability to make an informed decision and for them to either learn the subject matter or get counsel who does know it?
Like a city whose walls are broken down is a man who lacks self-control.
of course, the 'ever so smart judge' does not know this fine nuance.
Why would he care whether you run your own mail server? His holding is that the police don't have to notify you when they're executing search warrants on your e-mail held by third parties. If your e-mail is held by you, and not a third party, then the warrant has to be shown to you.
Right, like posting on a Blog is public and sending an email (which requires a password "envelope") is private.
CAn'T CompreHend SARcaSm?
We've seen this sort of "logic" before, and often. The general principle is "When a computer becomes involved, all precedent is forgotten, and centuries of hard-learned lessons must be learned all over again." I've forgotten who first pointed this out, but it's a useful thing to remember.
It took many centuries, and many deaths, for the freedoms that most of the "first-world" countries have were encoded in their laws. But over and over, we've found that the courts don't apply those laws to anything that involves a computer. It takes a good list of horror stories about the actions of ISPs and other people in positions of power, plus new laws, to get the older Real World laws applied to anything involving a computer. This is just one example of many.
It's sorta funny that computers, which are the ultimate in relentless, unforgiving, mechanical logic, have an effect on humans that can be characterized as destroying our ability to use logic as simple as saying that everything we knew before still applies when there's a computer in the vicinity.
In most of the First World, it's illegal for a postal or other delivery employee to open a package and make notes on the content. There are good historic reasons for this. It's interesting to read the history of the concept of "common carrier", and understand why it came to be. People did literally die before these rules went into effect, as the result of people opening and reading the contents of messages in transit, and selling the information to interested parties. This history isn't a secret. But when its a computer transferring messages, the carriers are permitted to inspect the contents and sell the information to interested parties. This will eventually lead to laws applying the common-carrier rules to computerized communications. But this will only happen after the same sort of disasters that led to the common-carrier rules for written, printed and analog telephone communications.
The only scheme that's stable over the long term is that "carriers" of messages should not be allowed to use the contents of the messages for any purpose. In exchange for this, the people in power agree to not punish the carriers for the contents of any delivered messages. Anything else will eventually be a disaster for the people in power, when they learn too late that the carriers have made "commercial" use of the contents of messages to/from powerful people.
This isn't a hypothetical scenario; it is exactly what led to the common-carrier laws in the past. Things like this court decision just shorten the time until such disasters occur. And it's all due to our mysterious inability to remember and apply historic precedent when there's a computer involved.
Those who do study history are doomed to stand helplessly by while everyone else repeats it.
Here's my new email sig...
"Copyright 2009, All Rights Reserved - NOTICE: This email has been digitally encrypted with the Double ROT13 encryption algorithm. Any unauthorized access is a violation of the DMCA and will be prosecuted to the fullest extent of the law"
Brawndo: It's what plants crave!
The original author of the blog in the story has revised his analysis thus:
"In the course of re-reading the opinion to post it, I recognized that I was misreading a key part of the opinion. As I read it now, Judge Mosman does not conclude that e-mails are not protected by the Fourth Amendment. Rather, he assumes for the sake of argument that the e-mails are protected (see bottom of page 12), but then concludes that the third party context negates an argument for Fourth Amendment notice to the subscribers. I missed this because the reasoning closely resembles the argument for saying that the Fourth Amendment doesn’t apply at all, and I didn’t read the earlier section closely enough. That’s obviously a much narrower position, and I apologize for misunderstanding it the first time in the quick skim I gave it. Sorry about that: The fault is entirely mine."
http://volokh.com/2009/10/29/opinion-on-fourth-amendment-and-e-mail/
"When a person uses the postal service, the user's actions are no longer in his or her physical home; in fact he or she is not truly acting in private space at all. The user is generally accessing the postal service with a zip code and mailbox owned by the United States Postal Service. All materials in transit, whether they are letters or packages, are physically temporarely stored on facilities owned by the USPS. When we send a letter or a postcard from the comfort of our own homes to a friend across town the message travels from our home to facilities owned by a third party, the USPS, before being delivered to the intended recipient. Thus, "private" information is actually being held by third-parties."
Ok, I didn't RFA. I'm too upset already...
The judge is trying to change the guidelines: http://www.usdoj.gov/—s&smanual2002.htm
I forget the court case, but I distinctly remember a case where the result was the "reasonable expectation of privacy" was enough to consider your papers to be private. I am not sure it was supreme court or not that did this. Many older cases without computers do apply to computers; yet for some reason we need to rehash resolved issues because of widespread computer ignorance.
My gym locker, car, parking ramp, office desk, etc are now fair game? My papers must reside on my property now?
I remember 5th amendment stuff.. coming from non-computer situations but totally relevant; but this guy decides that email is somehow DIFFERENT than the physical mail services. (BTW, the USPS has gone private which is one reason postage has been constantly going up...) At least if you ENCRYPT email you have supreme court rulings protecting your keys (FISHER v. UNITED STATES) the "Fisher Test."
One could argue that unencrypted insecure access to external systems removes the reasonable expectation of privacy; and therefore makes it publicly accessible in a way, like biometrics which are pubic - in a way. (BTW, biometrics are not private-- don't use them for 'private' keys!) Then you could take stuff like Trash-- if you trash an email, is it private? could they claim digital trash is like physical trash?? (your trash is public once it leaves your property.)
Democracy Now! - uncensored, anti-establishment news
By this logic it would seem two things happen that law enforcement might not like. First since it is not in your possession how can you be compelled to provide a key for decryption of something that is not 'yours' Further providing that key might even be a violation of law since you are cracking an encrypted piece of software.
Though the original logic actually makes sense from a law enforcement perspective what of general access. If you have no expectation of privacy could an ISP open every piece of email and sell the contents?