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11th Circuit Eliminates 4th Amend. In E-mail
Artefacto writes "Last Thursday, the Eleventh Circuit handed down a Fourth Amendment case, Rehberg v. Paulk, that takes a very narrow view of how the Fourth Amendment applies to e-mail. The Eleventh Circuit held that constitutional protection in stored copies of e-mail held by third parties disappears as soon as any copy of the communication is delivered. Under this new decision, if the government wants get your e-mails, the Fourth Amendment lets the government go to your ISP, wait the seconds it normally takes for the e-mail to be delivered, and then run off copies of your messages."
Half of the court probably had to have the concept of "email" explained to them. These were the annoying pricks that wore ties to class back in law school, most of whom were out of touch even back then. Now you expect a reasonable verdict that reflects modern innovations and changing behavior out of them?
"Email. Is that what my grandkids play their tic-tac-toe games on?"
"Uh, no Your Honor, that's probably a portable gaming console."
"Can I send a Tivo with one of those things?"
"No sir, a Tivo is a Digital Video Recorder."
"So an email is a Tivo?"
"Sir, I don't even know how to answer that."
"I'm ready to rule!"
SJW: Someone who has run out of real oppression, and has to fake it.
I've linked to it many times in the past, and it seems like a perfect time to do so again:
http://haacked.com/images/TerroristsHateFreedom.gif
Living With a Nerd
Is the Second still in effect?
Well, I'm curious about something, how does that apply when I control and run my own domain and email, but it is hosted by a third party? I have been using dreamhost for the past 3 years and I love it, but would they have to only contact dreamhost or do they have to contact me as well? There seem to be two alternatives, one of which I am already partially implimenting, that is 1) Hosting your own email on your own server (at home) and 2) (the one I'm partially doing) Encrypting email whenever possible. People often forget that email is plain text, and unless you are encrypting it, it could be comprimised at any number of locations and generally should not be considered pragmatically private at all.
"It's ok, I'm completely secure as long as my iron is off"
-----BEGIN PGP SIGNED MESSAGE-----
Hash: SHA256
This is why the use of encryption is a must. Sending email is like sending a postcard, except that copies of it are made and stored for perusal by government officials and ISP employees. Since most people use Firefox they should check out the amazing http://getfiregpg.org/
-----BEGIN PGP SIGNATURE-----
Version: GnuPG/MacGPG2 v2.0.14 (Darwin)
Comment: Use GnuPG with Firefox : http://getfiregpg.org/ (Version: 0.7.10)
iF4EAREIAAYFAkufikAACgkQmu9IBuIu3yEYOgD/dDFE5oEieIS9PWP7dUm+rOXU
1yfiGTlXropncPeFhX0BAIaYlc1iecFMV3CE2G2w7zZXO7pNlWEVqHS0yD9J2Z3j
=HF92
-----END PGP SIGNATURE-----
Well, all this is going to encourage is encryption of sensitive email, at least in the segment of the population that:
a. cares
b. has a clue
Ocean is land, covered with water.
Since the communication doesn't have 4th Amendment protection after it's "delivered", does that mean that intercepting phone conversations is OK as long as capture each packet after "delivery"? Fucking RETARDED.
Subject: Via.GRA Subject: HOT WIVES WANT U Subject: LOST $$$1,234,566 MONEY FOR YOU Subject: STAY HARD LOOOOOOONGER
Ok, snail mail isn't allowed to be opened and copied under federal law (exceptions such as military, etc, exist).
Sec. 1702. Obstruction of correspondence
Whoever takes any letter, postal card, or package out of any post office or any authorized depository for mail matter, or from any letter or mail carrier, or which has been in any post office or authorized depository, or in the custody of any letter or mail carrier, before it has been delivered to the person to whom it was directed, with design to obstruct the correspondence, or to pry into the business or secrets of another, or opens, secretes, embezzles, or destroys the same, shall be fined under this title or imprisoned not more than five years, or both.
If only we could get the same for email. That way no copies can be made and handed off to another party.
Sadly, I doubt this will ever happen.
Will google now pull out of the US?
I've said this many times here before, and I'll say it again... don't let them see anything other than the delivery envelope (headers) of your email. They can't legally open your postal mail, so treat it the same: gpg/PGP-encrypt your emails; all of them.
If a recipient you email frequently doesn't know how to use encryption, teach them. There are plugins for Firefox, Gmail, Thunderbird, Mail.app, and dozens of other mail clients.
If it's someone you don't converse over email with often, then it's probably not worth protecting anyway.
Seriously...
Learn to create, protect and use your gpg keys and your keychain. It's not that hard, and the benefits far outweigh the minutes of work and learning it takes to incorporate it into your daily workflow.
Email is more like a telegraph than a postcard.
With a postcard (in the US) you hand it over to a government (now quasi-gov) agency that is legally bound to handle your message in confidence.
With the telegraph system you sent a message in cleartext via a series of intermediaries [telegraph operators/mail servers] none of which were guaranteed to work for the same company. And the message was sent a a series of binary signals (dots-dashes/ones-zeros)
WTH? Using email is a requirement of modern business and personal junk. Glad there is no protection, under the Constitution, for communication.
is very bad news. Poor America, what have you come down to ?
Religous speak to God. Insane are spoken to by God. When all shut up, one can finally hear Shostakovich in peace
I need to actually read the case, but:
1. Alice sends Bob a message
2. Bob decides to post the message on Facebook or even, the police ask Bob for the message and Bob says: Sure here you go!
3. Alice has no expectation of privacy from Bob because she chose to send him the message.
The above situation is already well established as being perfectly fine from long before the time of the Internet. The meaning of the term "Third Party" is at issue here, and third party does *not* necessarily mean your ISP. Look at the stored communications act for the rules on how email is treated by law enforcement. If you send your email to somebody (the "third party") that somebody can choose to hand it over to anyone. However, this isn't any different than sending a letter over the Pony Express and having the person you sent the letter to read it in the town square for everyone to here.
Moral of the story: If you don't trust a third party, don't send them information!
AntiFA: An abbreviation for Anti First Amendment.
Thanks. You've added -so- much to the conversation with this post.
Exhibit B:
Now, a person of **reasonable** intelligence has to ask why the Post Office is holding it in care of the parties and an ISP is not. Even if you expand this out, each party in the routing from point A to point B of the packets of the email message is holding that data temporarily in care of party A until it reaches the email provider of party B who, in turn holds it in care of party B. The very essence of this is that each third party is acting, in a daisy chained relationship, like the Post Office with respect to the transportation of that communication.
Mr. "I have a doctorate in law judge Joe Shmoe" apparently doesn't have the basic sense once attributed to the peasantry to apply the existing rulings to a new scenario. It's not rocket science. There is no reason why email should be subjected to a different standard than snail mail, unless that standard is even more restrictive of the government since some email systems even go so far as to use systems like SSL to explicitly add a level of privacy expectation to the communication not readily had by the average person with snail mail.
Email is like sending a message on a postcard. How much expectation of privacy did you have doing that? The onus is up to the sender to protect the message instead of whining about any number of people who can and will inspect the email or the back of the postcard as it goes through the system.
Judges, lawyers - fools and buffoons to every last man and woman among them. They think they understand logic. They boast about their reasoning prowess. Ever tried to translate any law into code a computer can parse?
They're all a bunch of script kiddies without a computer to puke their nonsense back at them. True logic lies in the machine.
If Congress had to write laws that were held to anything remotely approaching the standard of what computers require of programmers there would be about 3 pages left.
we can order you to move all your stuff to the street where we can search it.
For a real-world example, imagine you write a letter and photocopy it before you put it in the mail. You file the copy in your closet and send the original. During the course of delivery, the original is protected by the Fourth Amendment; when it arrives, you lose Fourth Amendment protection. But the fact that you lose Fourth Amendment protection in the original does not mean that the Government can break into your house and read the copy you made. Conversely, the fact that the recipient of the mail does not have Fourth Amendment rights in the copy does not mean that the government can break into the recipient's house to read the original.
IANAL but, wow! I had no idea how bad this could be! The story from the judgment is that some guy sent faxes to a hospital complaining and mocking the management. As a favor, some local prosecutors investigated and set up false prosecution INCLUDING FALSE TESTIMONY to a grand jury. They subpoenaed everything including emails and phone calls.
The long and the short of it is that, because they are prosecutors, they are given absolute immunity from prosecution for their grand jury testimony, even if it is knowingly false! They are given immunity from the conspiracy to provide false testimony, since the only evidence of false testimony would be the grand jury testimony itself, which is protected!
The 4th amendment issues seem also weird to me. They say that you cannot expect a phone number to be private, since by dialing it you have given the number to the phone company, which is a third party. Really?! What is the point of a phone number, what value does it have, except with regard to the third party, in this case the phone company? I can't shout someones phone number in the street expecting that they will respond, and in any case, that also makes it public and not protected by the 4th. Again, IANAL but under what conditions would an email ever be considered private? What about letters and packages that aren't sent through the postal system? Are they private? I just don't understand this.
Again, I have no perspective and experience for this, but as a layperson, I really hope that other courts find this reasoning flawed. It seem very much so just by common sense to me, though I understand common sense doesn't necessarily mean anything here.
Last Thursday, the Eleventh Circuit handed down a Fourth Amendment case, Rehberg v. Paulk, that takes a very narrow view of how the Fourth Amendment applies to e-mail. The Eleventh Circuit held that constitutional protection in stored copies of e-mail held by third parties disappears as soon as any copy of the communication is delivered. Under this new decision, if the government wants get your e-mails, the Fourth Amendment lets the government go to your ISP, wait the seconds it normally takes for the e-mail to be delivered, and then run off copies of your messages.
In this post, I want to explain why the Eleventh Circuit’s position is wrong. I’ll start by explaining the argument’s origins in postal mail cases; I’ll turn next to Rehberg; I’ll then explain why I think the decision is based on a conceptual error; and I’ll conclude with some final thoughts.
I. The Source of the Argument: Fourth Amendment Protection in Postal Mail
To see where the 11th Circuit is getting this argument, you need to know a little bit about how the Fourth Amendment protects postal mail and packages. The Fourth Amendment ordinarily protects postal mail and packages during delivery. The same rule applies to both government postal mail and private delivery companies like UPS: As soon as the sender drops off the mail in the mailbox, both the sender and recipient enjoy Fourth Amendment protection in the contents of the mail during delivery. When the mail is delivered to the recipient, the sender loses his Fourth Amendment protection: The Fourth Amendment rights are transfered solely to the recipient. In practice, this works pretty simply: Each party has Fourth Amendment protection in the mail when they’re in possession of it, and both the sender and receiver have Fourth Amendment rights in the contents of the mail when the postal service or private mail carrier is holding the mail on their mutual behalf.
I should be clear that there are exceptions to these rules. For example, if a person sends a letter in what the Postal Service used to call “Fourth Class” mail — that is, mail that the Postal Service reserves the right to open — then it is not protected by the Fourth Amendment. See, e.g., Also, the Fourth Amendment protection only applies to the contents of the communication, not the outside. But the basic approach has governed postal mail privacy for a long time.
The new question is, how do to these principles apply to new communications technologies like e-mail and text messages? Unlike physical letters and packages, e-mails and text messages are just data. Communications technologies use digital networks that generate copies of the communications in the course of delivery. Those copies often stick around on servers when a copy of the communication reaches its destination. The Stored Communications Act provides statutory privacy protection to those communications stored on third-party servers, see 18 U.S.C. 2703. But does the Fourth Amendment protect those copies of communications as well? Right now the precedents are extremely sparse.
II. Rehberg v. Paulk
Enter Rehberg v. Paulk, decided by the Eleventh Circuit last week in an opinion by Judge Hull joined by Judges Carnes and Anderson. The case is kind of complicated, but here’s the relevant part. State investigators suspected Rehberg of a crime, and they allegedly used a state subpoena to obtain the contents of Rehberg’s e-mail from his Internet service provider, Exact Advertising. The complaint suggests that the government obtained both incoming and outgoing e-mails stored with Rehberg’s ISP; according to the complaint, investigators “obtained Mr. Rehberg’s personal e-mails that were sent and received from his personal computer.”
The charges against Rehberg were later dismissed, and Rehberg filed a lawsuit that claimed among other things that obtaining his e-mail with only a subpoena violated his Fourth Amendment right
So what does the 4th amendment of the constitution say about email? Did they even have the telegraph when that was passed? I doubt it.
The needs to be a new set of rules written and added to the constitution for the modern electronic digital age. (And passed by elected representatives (senate, congress) and not judges who were appointed last century.
War on Drugs
War on Terror
War on Paedos*
War on the Constitution.
(* Coming soon)
I don't need to read the case (if you want to imply you are are qualified to comment on law then why not just say so).
Alice has expectation of privacy from Bob if Bob promised not to tell anyone.
Now in the twisted reality of legal world where words mean just what lawyers want them to mean until a bigger lawyer contradicts them, maybe Alice has no expectation of anything... but in the real world, she does.
The only mail that matters is the LETTER, written to YOUR CONGRESSCRITTERs, stating YOUR views in YOUR words, informing them that if they do not correct this hole in the law RIGHT NOW, in a clear and unequivocal fashion, that you WILL work tirelessly to remove them from office and place somebody there who WILL correct this, and that likewise, should they work toward correcting this, you will work tirelessly to keep them in office (so long as they continue to constrain the power of government within the intent of the Constitution).
(and even that mail won't matter a load of fetid dingo's kidneys if they don't see real consequences this November. If you continue to vote for one side or the other of this wooden nickel that is the Democrats/Republicans, you have contributed to the status quo - don't bitch about it.)
www.eFax.com are spammers
...does not mean the Government can break into your house and read the copy you made. Conversely, the fact that the recipient of the mail does not have Fourth Amendment rights in the copy does not mean that the government can break into the recipient's house to read the original.
Further, the sender does not give up any copyright protection and it does not mean the recipient can copy or has copyright protection, but that the recipient has the responsibility to refuse to copy for third-parties i.e., "Sam."
There is nothing to FEAR but NOTHING itself; and I fear there is a whole lot of nothing going on. --scorpivs
What constitutes "delivery"?
This sounds to me like the court wanted the emails to be admissible and Made Up Shit to make it so.
Many Corporate emails have a disclaimer at the bottom, and most must go out to the internet to come back in company. That being said, if anyone sends a trade secret via email, it's fair game since email is being equated to a PostCard.
I call someone on the phone, my phone conversation is one on one, and it cannot (in some states) be recorded without my permission. Since many more people have VOIP, are not our conversations just data streams?
I should be able to expect a reasonable right to privacy. This means no matter how I communicate, whether text, twitter, phone, email, in person, and even postcard. Unless I'm yelling something at the top of my lungs for everyone to hear, I'm not openly announcing and relinquishing my right to reasonable privacy.
But apparently the law doesn't quite work that way. /sigh
Life takes interesting turns, but the most interest is when you're off the beaten path.
The case can be read at:
http://www.leagle.com/unsecure/page.htm?shortname=infco20100311081
Here's a brief summary
1. A guy sent some faxes to a hospital criticizing their management and mocking them.
2. The prosecutors and police were friends of the hospital management and they investigated this as a "favor"...
3. they secured three successive indictments against the guy, all of which included felony assault against a man he never met
4. each time the indictments were dismissed by a higher court
5. but they arrested and held him anyway
6. so he sued for violation of his 4th because they got his phone records and emails without a warrant and for malicious prosecution
7. The 11th circuit dismissed ALL the malicious prosecution claims, granted the police and prosecution total immunity, and ruled that the plaintiff's rights weren't violated when his emails were turned over, because they had already been "delivered" to his ISP.
There are a lot more things wrong with this decision than just the 4th amendment violations.
The court had a conclusion it wanted to reach (that the prosecutors were immune from suit), and it engaged in some sophistry to get there.
Normally, if Alice send a piece of mail to Bob, once it gets to Bob, Alice no longer has a Fourth Amendment interest in it; Bob however, does. A number of (bad) cases indicate that if the government just takes the mail from Bob and violates the hell out of his rights, they can still prosecute Alice (but not Bob) for the contents. Extend that to email, and you can say that if you subpoena the email from the ISP once Bob has it, you can prosecute Alice (even if the subpoena itself should not have been granted due to Bob's interest in the email). It looks like sophistry designed to vitiate the Fourth Amendment, primarily because it is, but it's sophistry with precedent.
The court went a lot further out on a limb with the other precedents it cited, however -- comparing intercepting email with the use of a pen register (which captures phone numbers -- addressing information, not content, a distinction which long precedes electronic communication and which judges have no excuse not to understand). It makes a similar "error" when it compares email content to "subscriber information" (information about the users of the system).
http://www.ca11.uscourts.gov/opinions/ops/200911897.pdf
For are foreign friends:
4th amendment of the US constitution:
"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."
From the case:
“a legitimate expectation of privacy in an e-mail that had already reached its recipient”);
This is correct. If yo send me a letter, you do not have any rights of privacy that forbid me from sharing the letter with others.
\
All other email references in the case were gathered after a Subpena was issued.
The Kruger Dunning explains most post on
It was decided years ago that the phone numbers you dial are not "private" once you've dial them. This is essentially an application of the same concept, where you tell a 3rd party (the ISP or phone company) a "secret" (an SMTP message or phone number) and they blab it to someone else (since I guess they don't care about their own privacy).
From http://www.leagle.com/unsecure/page.htm?shortname=infco20100311081:
at how people are shocked! shocked! that the government doesn't protect your privacy for you!
isn't that a logical contradiction? the GOVERNMENT protecting your PRIVACY?
we frequently see laughter on this website at the "think of the children" tired meme: the refrain frequently heard here is that "it's not government's job to raise your children, its your job"
if you understand that, why do you not understand that protecting your privacy is YOUR job, not the government's?
encrypt it! if you don't, tough shit
its that simple
what the law says about the issue is completely besides the point: if you honestly care that much about your privacy, be proactive and protect it yourself. don't trust the government or some ISP, no matter WHAT the law says (the law is going to stop them?)
intellectual property law is philosophically incoherent. it is your moral duty to ignore it or sabotage it
It's hot in Suez. The dice are on the table. The long sobs of autumn violins, wounding my heart with a monotonous languor.
Funny, the Germans never suspected that the above meant: "Attack all telephone lines. Sabotage railway lines. D-day has begun, sabotage railway lines in the West, general mobilization: attack munitions dumps, transmissions, rail networks and German convoys".
This is how you hide things in plain sight. It's better than encryption because, well, there are no passwords to be thrown in jail over. Of course the guy on the other end has to know what he's doing.
Seven puppies were harmed during the making of this post.
People seem to think that e-mail is the equivalent of a sealed envelope letter. It's not. It's the equivalent of a picture postcard, open to the world to see, and therefore bereft of 4th Amendment protections ("plain sight" rule).
If you want 4th Amendment protections for your email, place it in an "encryption envelope" with your favorite e-mail encryption app (PGP, OpenPGP, proprietary, etc). Otherwise, quit yer whining.
Any US court that tries to argue that email isn't "protected" has little to no understanding of the US constitution: "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."
EMail is modern mail; and mail is one case of the "papers" mentioned in the 4th amendment. The US mail is a 100% analogy here. Sure, someone can easily can look in an envelope during its trip between parties, or at either end, but the 4th says you have the right to be secure in your papers and effects, so it is illegal to do so. EMail is precisely the same kind of communication. It isn't about the fact that someone can look; it is about your right to privacy, to expect that they shall not look, and if they do, they have harmed you.
This covers why email is protected as a side issue of the main discussion: On Privacy.
I've fallen off your lawn, and I can't get up.
I hate to break it to you, but this ruling also established the basis for breaking 4th amendment protections for the contents of your phone calls.
VOIP has always relied on packet-switching (with its associated store-and-forward basis) for calls and in recent years the PSTN has also been converting from circuit switching to packet-switching.
Delivering your phone call content via packet-switching inherently requires the phone carrier to make and store (at least temporarily) a copy of your phone call content in the same way that delivering a copy of your email requires your ISP to make and store a copy of your email (and that applies regardless of whether you use your ISP's mail server or run your own). Under the reasoning established in this ruling, if your phone carrier retains their copy of your phone call content after delivery of that content then you lose your 4th amendment protections regarding disclosure of that content...
Now may be a good time to live in one of the states which require two-party consent for voice recording...
You obviously never tried to convince a nontechnical person to use encryption. They just get that sour look on their faces, thinking "yeah, yet another stupid techie thing I don't care about but now have to learn". Naturally, you can't ask them to set up encryption themselves. Installing gpg and enigmail is a nontrivial task even for me. And you can't even set it up transparently, because gpg evidently decided that an empty passphrase is "insecure" and not to be allowed. Of course, they don't care that if the nontechnical user has to remember a passphrase and to enter it to email to you, well, they'll just not send you any mail.
Then there's the problem of most people using webmail. The desktop mail client is going extinct and all the regular users are moving to gmail, where, like on any other webmail, you can't have encryption without surrendering your private key to the provider.
Oh, and to add insult to injury, my mail forwarder (www.nearlyfreespeech.net) adds a ***UNCHECKED*** prefix to all encrypted mail it forwards. No, Mom, it really is safe to open my email. ***UNCHECKED*** just means the forwarder couldn't read it and verify that it has no viruses in it. What's a forwarder? Well, it's a...
http://www.ca11.uscourts.gov/opinions/ops/200911897.pdf
Email is a post card. Anyone can read it along the route. Anyone can choose to use that information. The government can request the information anywhere along the route.
If you write a death threat on a postcard, your mail carrier may report that information to the authorities.
The Kruger Dunning explains most post on
"What's this 'constitution' of which you speak?" - typical president, congressman, court justice, or other U.S. government employee
State leaders also forget they have a state constitution they are supposed to obey. For example in Massachusetts I can find no part of the MA Constitution which grants government power to pass a mandatory "buy insurance or be fined $1500" law. What's next? Buy a Prius or other hybrid, or else be fined by the MA Legislature?
"I disapprove of what you say, but I will defend to the death your right to say it." - historian Evelyn Beatrice Hall
Any personal work is already backed by copyright. The government, or anyone else, making copies of that e-mail but not being the intended recipients are violating my rights to this personal work.
HOW ABOUT SOMEONE IN GOVERNMENT STOPS AND THINKS IF THEY WANT THIS SHIT DONE TO THEM.
Hackers should expose government employees and leaders' personal e-mails and collect/track their data and present it online in a searchable manner. I don't think these people are going to care about THE PEOPLE until THE PEOPLE show them that they are people too.
What this says about our privacy and all of that is troubling, to be sure, but this also applies as well to the government itself, doesn't it? Ie - if their emails aren't going from a government system to a government system without anyone in between, then they also are fair game for law enforcement?
What I get out of this boils down to essentially: "If it hits any public source or ISP along the way, it's no longer considered protected."
So much for iPhones and Blackberrys and all of that in D.C...
When this flip side of the ruling is understood in a few days(they are a bit slow at times in Congress), I expect it to be changed back fairly quickly.
Sometimes a "reasonable expectation of privacy" from both a legal viewpoint and a technical/common_sense viewpoint are the same, and 18th century scenarios tend to embody this.
If you and another person are alone in a house, your conversion is probably private. Yes, there might be a government agent hiding behind the chest-of-drawers, but that's unexpected. The government would need a warrant to do that, a non-government person doing that is very likely a criminal, etc.
With unencrypted email, the communications are broadcast to the world and expected to pass through many different systems, some of them managed by people with no direct relationship with either the sender or the receiver, shouted out to an ethernet on every hop. And yet, some people are expecting the same sort of legal expectation of privacy to still exist, even though from a technical and common sense viewpoints, an expectation of privacy is pretty much diametrically opposite from "reasonable." It's about as reasonable an expectation of privacy as 18th century people standing in a crowded town square, shouting at one another within earshot of a hundred listeners, some of them transcribing the conversation and then throwing the transcription on to the ground and walking away. Maybe the 18th century founders could have passed a 4th amendment that makes it so that the government (and other parties, all the little brothers) are required to totally ignore this information. But somehow that word "reasonable" slipped into the wording. And people are now fighting about that.
Give up. I don't mean give up privacy, I mean give up the quest to twist the word "reasonable" to something that only highly trained lawyers can understand. Let that word mean what every layman thinks it means, and that means you shouldn't pretend that unencrypted email has a reasonable expectation of privacy.
Note that I keep saying "unencrypted." It ain't hard to guess what it would take, in order to create a reasonable expectation of privacy.
As copyright owner of this comment, I authorize everyone to defeat any technological measure which limits access to it.
...says the Anonymous Coward who has even less to contribute than I do.
Besides, I don't care. Look at my user number. I know first-hand how Slashdot has gone to hell over the last several years. There are plenty of whacked-out echo chambers on the 'Net, but this place is a pioneer in the field. The only reasons I still check here at all are a) force of habit and b) to laugh bitterly at you all.
Never write if you can speak; never speak if you can nod; never nod if you can wink. http://en.wikipedia.org/wiki/Martin_Lomasney
Did you know 80 to 90% of the moderators on slashdot wouldn't recognize a troll even if one dragged them under a bridge.
However, if I send a message to someone who uses Gmail -- where the recipient *knows* that their email's content is used by Google to target advertising -- then I have given up all expectation of privacy, even if I run my own mail server for outgoing messages.
But what if the recipient actually owns and runs their mail server? Then the sender can be assured of privacy under this ruling (providing that the sender runs his own mail server) because the recipient controls the delivery. Of course, a sender typically has no knowledge of who runs a recipient's mail server, so they can't always have an expectation of privacy. Right?
And in stupid states like MA, neither party can record the conversation without making the other party aware. So if you have a really complicated hearing aid with a DSP, it should be considered a felony since "sound" is "recorded" even if it is only temporary.
I prefer to run SMTP-server on my home machine and never let any ISP, Google or whomever to store copies of my mail any longer than it is needed for technical purposes of SMTP protocol.
With current broadband penetration everyone can do the same. Plug a USB-flash into your Wi-Fi acces point and run postfix on it.
What gets me most about this is that someone can lie to the Grand Jury and is immune to civil liability because they testified to the Grand Jury, even if that testimony was a lie. And, if that testimony gets someone arrested and imprisoned - although on false testimony - there is no recourse for the accused.
I believe that if you lie to the Court and get caught, all expectations of immunity should go away and you should be prosecuted for perjury.
email is like a telegraph, or a switchboard operated phone network. Did the government have the right to take a copy of the telepgraher copy?
I don't think so.
"A person also loses a reasonable expectation of privacy in emails, at least after the email is sent to and received by a third party. "
USPS regularly uses contractors and possibly even other 3rd parties for delivery, which is no different than email being passed between different servers.
Oh, welcome to the brave new world order!
Go ahead, look at that list above and pick out the things that "the other party" does and nod your head in agreement. Ignore the equally destructive sins of your own party since their shiny beads are worth selling your soul for.
Why are you letting these clowns ruin our country?
First off, for the encryption fans, this is all about what can be done legally without a warrant. Obviously by breaking the law or by getting a warrant, all bets are off. But if someone is breaking the law, AND if you can detect and prove it, you've got recourse - and presumably warrants require just cause, some evidence, and due process.
This ruling is walking a tiny, sneaky technicality. They have likened email to snail mail, and applied the same protections.
While in transit, snail mail is protected by the rights of the mail carrier and by your rights. Once the mail carrier had delivered the mail to you, their rights in the issue evaporate. So the court is saying essentially the same thing about email - once it's handed to you, the ISPs rights are no longer involved. We are probably thinking of email more like (weakened) banking or medical information - the ISP holds it on our behalf.
At this point it's worth noting that if you use POP, you're legally "safe", but it's only that delete-after-delivery that does it, and your ability to secure your own machine.
The living have better things to do than to continue hating the dead.
This.
Obama siding with those who lobby tofight rights.
The whole 9/11 political exploitation.
What else is missing?
(I'm not from the USA)
I was given a piece of advice when I started using email: "Don't put anything in email that you wouldn't want shouted by the town crier in the town square at high noon on announcement day."
There is no expectation of privacy in email.
However, ANY encryption method can be used to protect yourself legally. You can use rot13 if you like, or if you're paranoid, triple rot13. IANAL, but my understanding is that the DMCA prevents anyone from decrypting your email legally (if not practically). Decryption of digital transmissions is illegal.
If you want real privacy on email you send, use pgp.
E-mail is, for all intents and purposes, like a postcard: it is sent in the open for anyone to read. Are postcards off-limits from the 4th amendment? Surely, if there was some threat to the government made on a postcard that a postal-service employee could read, action would be taken.
The solution is to encrypt e-mail that is sensitive.
Just for sheots and giggles, I looked up the members of the US Court of Appeals for the Eleventh Circuit. The youngest member, William H. Pryor, Jr., was born in 1962. Beverly B. Martin, the next youngest, was born in 1955. But the judges ages aren't necessarily a valid indicator of how tech-savvy they are. Alex Kozinski of the Ninth Circuit, was born in 1950, and is well-known for, among other things, his grasp of technology.
The other thing to remember is that the onus of responsibility is on the lawyers who are presenting their case to the court. If they didn't do a good enough job of explaining the intricacies of email to the judges, they failed in their role as advocates.
For those who may have wondered, the Eleventh Circuit covers Alabama, Florida, and Georgia. Finally, for something other than a knee-jerk reaction to the ruling, Professor Volokh's article (the one linked to in the post) is worth reading.
Read the EFF's Fair Use FAQ
Ahh, I love the smell of people logically arguing why an illogical system isn't following logic, in the morning. Its right up there with making a joke and having the oblivious butt of it explain to you why it doesn't literally make sense.
You are all wise and correct beyond your years. Hopefully one of you can explain to us all why a wookie would live on Endor.
Even though I have a safe deposit box (email) stored at a third party (ISP), I have a key (passord) and thus expect it to not be looked at. Can the feds now raid all safe deposit boxes without a warrant?
Lessig's argument against the Sony-Disney copiryght extension act was that the constitution granted Congress the authority to grant _limited_ monopolies to copyright holders.
The Supreme Croutes decided that 150 years was indeed very limited even though nobody ever lived that long.
Note that the argument is not that copyright should be abolished but that it be reasonable -- and mathusaleh-length is not reasonable / limited, in fact it's just as insane as not seeing that emails are today parts of one's "papers".
Convenience trumps all, always.
I'm not sure that's accurate. We all have different ideas about privacy. To some people, a fence around the back yard is vital for protecting privacy. Some people don't care about shielding what they're doing in their back yard from their neighbors. Some people will tell you all about their recent colonoscopy. Some people feel that's their business alone. Some people join the EFF, some people don't even know it exists. I know people who share all kinds of stories on Facebook that I would never share in an online venue.
It appears to me that you value the privacy of your email messages. Keeping them away from prying eyes is important to you. But there are plenty of people out there who, if they found out their emails had been read by someone else, would just shrug their shoulders. You can call it stupidity or laziness, but I think most people just figure the probability that anyone would ever care about their email correspondence is vanishingly small, and the negative effect of it being read is minimal.
Read the EFF's Fair Use FAQ
The article in Volokh.com is simply wrong.
The ISP received a search warrant for the emails and replied to those search warrants. This is well in line with fourth amendment procedures. The defendants in this case were the D.A. and his assistant. The complainant was the one who had the search warrants executed by the D.A. on his emails.
The warrants had lots of issues and might not be valid. The validity of the warrant and the ability to use any information gleaned from the warrant in court against the defendant was never an issue in this particular case. The court had (several times in fact) ordered all charges be dropped against the complainant and for the D.A. (the defendant in this case) to stop harassing the defendant.
In this particular case, the complainant filed charges that he was harassed by the D.A. for no reason. The whole case is that the complainant charged the D.A. and the assistant with multiple infractions. The ruling of the court is whether the D.A. had full and partial sovereign immunity in dealing with the grand jury which heard the case against the complainant.
In this particular decision, the court ruled that the D.A. did have immunity when he acted in front of the grand jury, but that he could still be charged with harassment.
Sorry, that's pre-9/11 thinking.
Your comment only makes sense if the same people are laughing and becoming enraged. If different people are making different arguments, which is much more likely, your comment makes not even the slightest bit of sense.
If you read this thread, you'll see that many people have differing viewpoints. So it's not appropriate to make a herd mentality assumption when immediate observations contradict that.
Finally, I have seen no substantial discussion of mp3 downloading as it relates to the 4th amendment. If someone were to "make the same argument", it would read "The government cannot snoop my mp3 downloads without a warrant." As far as I know, even at the most paranoid "Carnivore exists and is collecting everything you do online," the chances that they are using that data to find mp3 downloads is fairly remote at this point. It is more likely a collection of the people you talk to regularly. Let's fill in the blanks:
"[mp3] files are reproduced at no cost, so there should be no [copyright] protection for them"
"[email] files are reproduced at no cost, so there should be no [warrantless search] protection for them"
Is that the same argument?
I'm not saying I agree with the ruling, but that's where the law seems to be at. Emails aren't considered papers. When asked for your ID, giving someone a file on a flash drive won't cut it. Effects are also physical objects.
And the US mail analogy doesn't hold up 100%. In no case does the USPS actually have a chance to see your content WITHOUT opening the envelop. That is NOT the case with email. It actually is more like a postcard (which wouldn't be protected BTW by the 4th amendment, look it up).
Again, I don't agree... but we need to get a law which explicitly protects email, just like we had to for phone conversations (where the actually CONTENT is available to anyone from end to end).
When Government Convenience trumps the right to privacy, when progressives (progressing towards what?(communism Marxism?) rule the house and the Senate.
When security becomes more important than freedom. (Post Sept 11th 2001 near police state, scanners at airports that see through clothes, National ID's being pushed, fingerprinting at the DMV, etc etc etc)
When Government spending reaches a level that is unsustainable and risks triggering economic collapse (an another excuse for martial law or government control)
When the will of the people is ignored (Current Health Care bill)
When laws are passed that mitigate freedom and violate fundamental rights that all men and women are endowed with from birth.
When you have had enough of being told what to do by a Government that thinks it knows better than you do.
Then you must take up arms and throw off the bonds that shackle you.
You must remove the head of the beast that oppresses you and takes away your freedoms.
You must start a revolution!!!
Back in the late 1700's revolution meant something, today my guess is the sheeple will just beg their congressmen for more handouts and entitlements. They will pay with their rights and their freedoms. Meanwhile a small group of us are stockpiling guns and ammo and are waiting for the horror which our founding fathers knew one day must happen. The replanting of the tree of liberty, and the watering of said tree with the blood of patriots.
Please contact your congressman or vote them out of office is they don't listen. Buy a weapon and learn how to use it. Read the constitution of the USA and fight for it, do not let such a brilliant piece of genius become a footnote in history. We are all the government, we are all this country, and we must all fight for it. Via language and discourse, via email, pamphlet and prose, or via the hot fire of lead as we destroy those who should dare to think they can vanquish freedom from hearts of true Americans.
Thank you for the complement.
I've fallen off your lawn, and I can't get up.
I can't believe I'm saying this, but is this a play by the government to have the PO replace IPs so that we can have our rights reinstated?
What does this ruling mean for non-government type folks that cull emails? IF the government can take a peek at emails without warrants, mayn I do the same?
The kid that got in trouble for hacking Palin's email got in trouble for using password recovery. But now it seems if emails aren't protected, how can you get in trouble for looking for them?
While I was RTFAing, this car analogy came to me:
The decision essentially means that if you unlock the passenger door, put something on the seat, then walk around the car to unlock the driver door -- while you are so walking, any passing cop can run over, open the passenger door, and take whatever is on the front seat, all without a warrant.
~REZ~ #43301. Who'd fake being me anyway?
ISP's should be required to delete each email immediately after it is delivered. That way, the only copy is the one the recipient has and the one the sender has.
I finally got around to telling them about it today and they fixed it, so feel free to become a NearlyFreeSpeech customer. I may have griped about this one little problem (which they apparently didn't know about), but they really are the best host around.
Phones weren't originally protected either, because after all: Your conversation is being broadcast onto public phone lines owned by the public that anyone can listen into. But Congress wised up and legislated specific protections for the phones.
Of course, that was the culture of the late 1800s or so, right? In today's culture, Congress won't give us any protections that decrease their power... And the judiciary will gladly help them.
We're scared so shitless by terrorist deaths that equal one month of car accident deaths (9/11), that we've lost sight of the very meaning of the freedom granted by privacy. The powers that be want power, and nothing else. And they just got some. Over you.
Email is modern mail. These are the same "papers" that the 4th Amendment describes. But they couldn't describe it in terms of technology that didn't exist until 200 years later.
Origin of this case is even scarier: http://yro.slashdot.org/comments.pl?sid=1584520&cid=31495636
-Clio
Karma: Bad (mostly from not giving a fuck)
Blog: http://clintjcl.wordpress.com
It's amazing everyone forgets that information, about you, for you, from you, is yours. Third party is irrelevant. Make it the death penalty for violating it and the problem goes away. Oh course so does the gossip industry, data collection industry, domestic spying, uh I'm still trying to see a bad point about this. It also does away with third party issues as there won't be any.
It's coming soon. In MA, ignoring the state and US Constitutions is an art form. There is a giant billboard (the length of 4 or 5 regular billboards) facing the Mass Turnpike by Fenway Park that is dedicated to anti-2nd amendment propaganda. Has been for years.
I prefer rogues to imbeciles because they sometimes take a rest.
1. "The founding fathers did not anticipate fully automatic machine guns, therefore the Second Amendment does not apply." 2. "The founding fathers did not anticipate email, therefore the Fourth Amendment does not apply." If #1 applies, so does #2. If #2 does not apply, neither does #1.
It's funny that you should say that. Last time I checked, a constitution was a document limiting the powers that the federal and state governments have. The catch is that the Federal constitution has an amendment that says "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."
If the MA state constitution doesn't have any provision like that, to pass unenumerated powers down to the next level (County/Parish (Louisiana)/Borough (Alaska)), the state legislature can pass laws like that.
GLaDOS for President 2016! "Well here we are again. It's always such a pleasure." -- GLaDOS, 2011
Comment removed based on user account deletion
From the Oracle at Google, I found this paper by Orin Kerr (the professor featured in TFA) who argues convincingly that encryption does not create a legal standard presumption of privacy. Based on my educated layman's understanding of the law, his reasoning is sound in that the fourth amendment regulates access to the data WRT possession, not access in the sense of being able to use the data. Therefore, the government cannot compel you to give them your encryption key willy nilly if they need it to grok the data, but you can't protect yourself if they have the means to break the encryption.
That's really where your argument falls apart. Encrypted email is analogous to a postcard coded with something like the caesar cipher. Any postal employee can legally break that over a coffee break since the read the writing on the post card without violating the law. The closest thing to the protection of a first class envelope that an email could have would be to have the data buried inside a steganographically coded image or sound file.
Email is the modern postcard, not modern mail. Mail is sealed in an envelope PGP is the envelope of email.... use it.
In fact, check out Breyer's Wikipedia page for a lesson in what "constitutional" means.
On the bench, Breyer generally takes a pragmatic approach to constitutional issues, interested more in producing coherence and continuity in the law than in following doctrinal, historical or textual strictures
Not that this "flexibility" with respect to the letter of the law makes him a friend of liberty:
However, Breyer is also recognized to be deferential to the interests of law enforcement and to legislative judgments in the Supreme Court's First Amendment rulings.
Nice. So at least now you can be clear on the whole "reading the constitution" thing.
Just wait until Congress realizes how much money they can save by passing a new federal law requiring homeowners with spare rooms be required to become the new "temporary room & board" for military personnel.
I don't know about you, but when I send an unencrypted email I have no expectation of privacy from the moment the text leaves my computer.
Expectation of privacy means you can reasonably expect your privacy to be respected, not that you can reasonably expect it to remain secure even in the face of someone trying to violate it!
Example: A conversation in your home is private, even though a simple glass held to your window can let someone listen in. It is reasonable to expect that people will not do this. A conversation in a restaurant is not private, because you cannot reasonably expect that nobody will listen to you -- in fact it's difficult for them not to.
Your ISP has no reason to read your email outside of the header. It is reasonable to expect that your ISP will respect your privacy in this case. It is doubly reasonable to expect that the police will respect your privacy, so long as they are obeying the law.
The interpretation that "expectation of privacy" means "how much privacy can you expect to have in the face of malicious people deliberately trying to violate it" is incorrect, and silly. It would make the 4th Amendment meaningless, because anything that someone can view is ipso-facto not private and thus not subject to the 4th.
The enemies of Democracy are
> to laws like "pi equals 3.00" and findings like the McDonalds coffee lawsuit
Your post has quite good points, but you come off looking like an idiot when you equate legislation to jurisdiction, and a law which contradicts fact to a lawsuit whose outcome, as you so correctly point out, rests on what is considered "reasonable" (peculiar that you do not understand that this is largely a subjective judgment rather than a factual one).
Or did you just not read up on the facts of the McDonald's coffee case?
Oh, I'll grant you there are some differences in the comparison, but the central point still stands. The same people that argue against copyright protections for things like music are making the same arguments that the government is making about email. The issue here is the notion that because the file is not "tangible"... a paper letter or a plastic CD... then the electronic file doesn't have the same legal protections, even though it has the same content. That's the argument of both parties in a nutshell. And while on the one hand we're talking about constitutional rights, and on the other, intellectual property, both are legal arguments. Which is what this all comes down to.
Life is hard, and the world is cruel
Today's US Supreme Court may have a problem with the 4th Circuit Court's decision, so it ain't over yet:
US courts are notoriously tight about the confidentiality of judicial e-mail, whether issued by a city, state, or federal bench.
This ruling makes it possible for judicial e-mail to be searched by warrant and/or subpoena delivery to an ISP.
This could be very useful to journalists investigating political corruption of the US judicial system, since this could effectively make transparent the process of reaching sealed decisions through "in-chamber" e-mail negotiations not normally part of the public record of court proceedings.
There will be a few judges who may be hoisted by their own petard!
DarkStarZumaBeachSurfinApocalypseWow
Email is a postcard. It's plain text. Remember the Carnivore and assume the government, and everyone else, is reading your email.
There are a lot more things wrong with this decision than just the 4th amendment violations.
I was thinking the same thing. Reading that link made me sick to my stomach (It's goatse in legalese). I especially liked how the prosecutors were given absolute immunity for making up a fake story and then testifying in front of a grand jury. The judge pretty much admitted that the testimony was false and that the three indictments were intended solely to hassle the guy, but then gave them immunity anyway. His reasoning was basically that if any exception were made for the rule that prosecutors were immune to civil suits, then the courts would be overloaded with cases. So it alright for this guy to be railroaded by freaks clearly abusing their power, I suppose. Ick. I have to take a shower now.
If you want a vision of the future, imagine a youtube comments section scrolling - forever.
Besides, I don't care. Look at my user number. I know first-hand how Slashdot has gone to hell over the last several years. There are plenty of whacked-out echo chambers on the 'Net, but this place is a pioneer in the field. The only reasons I still check here at all are a) force of habit and b) to laugh bitterly at you all
You think so? I've been on for 10 years now and I think the general level of echo-chamber-ness has actually decreased as the userbase gets a lot more diverse in terms of age and background.
I can find no part of the MA Constitution which grants government power to pass a mandatory "buy insurance or be fined $1500" law.
Assuming you refer to car insurance, you have a third choice: Don't drive. You have no constitutional right to drive an automobile. If the state wants to require proof of financial responsibility before it licenses you to do so, it has violated your rights no more than if it makes you pay tolls to use the roads.
You do have a constitutional right to be secure in your person, papers and effects. That's the difference.
doc
No. You are completely wrong. You're trying to make a case for the elimination of security based upon ease of observation. That's not how, or why, security manifests itself -- it is a right that applies to persons, houses, papers, and effects.
Encryption is not the boundary. Encryption is a hardening of the boundary. The boundary is that you have the right to be secure in your papers and effects. Likewise, an envelope is a (trivial) hardening of the boundary.
If I leave my door unlocked, that doesn't give you permission to come in. If I lock the door, I'm hardening the boundary. If I bar the door, I'm hardening it further. If I drop a portcullis over it, I'm hardening it even further. But the basic right never changes - I have a constitutional right to security [persons, houses, papers, and effects], and that right is in no way pendant upon how much, or if, any boundaries are hardened.
Some content from my "On Privacy" article:
Let us say that a lady elects to wear a skirt. Does this give us the right to look up her skirt? After all, if she didn't want us looking, she could have hardened the boundary, that is, worn pants, is this not true? But any reasonable person understands the security of her person is not to be violated -- she is not extending anyone permission to look up her skirt just because she is wearing one.
But what if she is a shoplifter and is hiding merchandise up her skirt? Would this not give us the right to look up her skirt? The answer is, it would if one had knowledge that this was the case.
The constitution calls this "probable cause." The idea that a lady could hide merchandise under her skirt clearly does not translate into the right to look up all ladies' skirts -- the very idea is ludicrous, is it not?
Yet the US government is telling us that the reason they are justified in looking at everyone's email and other Internet activity is because these activities "could" allow illicit activity, and it's "easy" to look at email.
This is precisely the same kind of reasoning we just disposed of with skirts; the only time the government should be looking at any communication is when (a) they have probable cause to think that those communications are of a criminal nature, (b) they have obtained a warrant that (c) specifically describes the communications to be searched. Why? Go read the fourth amendment again -- it really couldn't be any plainer.
I've fallen off your lawn, and I can't get up.
I suppose in theory you could always issue all your friends webmail accounts, hosted on your server, hosting your domain. A better question might be, "does this apply only to email, or all electronic communications?" If it ONLY applies to email, your 4th ammendment rights could still be upheld by using say, private messages (PMs) on an internet forum, or any number of alternative "email" systems.
Does Gmail have native PGP support yet? Is there a Chrome plugin for that?
For Firefox, there's the FireGPG plugin that supports Gmail and a few other webmail interfaces.
Once you have PGP encryption/decryption in the browser, it would be nice if mail hosting companies offered the option to encrypt unencrypted mail as it arrives.
In terms of mail does the law make a distinction between enveloped mail and postcards? Would email be considered a postcard? Short of encryption could an envelope analog for email be developed? (Something that indicated it had been opened).
By this interpretation, would the court also want to say that cable TV transmissions aren't covered under freedom of speech and the press because cable TV isn't a "press"?
I'm not a lawyer, but I play one on the Internet. Blog
I don't know, why don't you ask them?
>>>>>I can find no part of the MA Constitution which grants government power to pass a mandatory "buy insurance or be fined $1500" law.
>>
>>Assuming you refer to car insurance, you have a third choice: Don't drive.
True. You're right, but I was actually talking about Mandatory Hospitalization Insurance. Buy it, or get fined by the MA legislature. So your solution to that is what? Stop living???
"I disapprove of what you say, but I will defend to the death your right to say it." - historian Evelyn Beatrice Hall
Oh come now people... can we really expect 11th circuit court judges to be able to distinguish between the pronouns "by" and "to"?
Let's do a quick poll among intelligent slashdotters:
Question: Is there a legal distinction between "email sent to an ISP" versus "email sent by an ISP"? Answer choice are:
a) Yes
b) No
c) It depends on what the definition of "is" is.
d) You didn't say "simon says".
No, it doesn't. 4th amendment arguments are about whether something is public or private. Copyright arguments specifically assume that information is public, since if the information is private it cannot be copied. Information which is private does not require copyright protection, and no one ever said e-mail should be handed over solely because it's easy to do. "[B]oth are legal arguments" specifically makes no logical sense. On the one hand we're talking about constitutional rights, and on the other, intellectual property, and those are very different areas of law. That they are both found in the volumes which make up the entirety of USC is as meaningful as two people being found in the same telephone directory. Actually even less, unless the directory includes every person in the nation.
To clarify: the vast majority of copyright arguments here are based on one or more of the following:
1) Copyright in USA is unconstitutional since it is not "limited" as required (to the view of an individual, who will not live to see anything created in his lifetime public domain.
2) Copyright violations typically do not harm the company, certainly not in the amounts claimed, because (most) people would either not purchase the product, or use free alternatives.
3) The business model of creating digital content which is easily copied and treating it as if it were a tangible good makes no sense, and companies should update their business model. Specifically, it costs a lot of money to copy a book, even after initial machinery is acquired. The marginal cost of copying a digital CD or software installer is whatever you are paying for download if metered, or zero if unmetered or being transferred locally.
4) Civil disobedience to protest unfair copyright laws including the copyright length as above, DMCA which limits what you can do with what you pay for, DRM which makes legit users suffer and illegit customers have it easier, or overly restrictive EULA type agreements.
None of this applies to 4th amendment rights, nor to this case in particular. Is there an argument I forgot other than the fatally flawed "Information wants to be free" line?
There are a few people who will say "pirate everything" just as there are a few who say "read all of my online activity if it helps catch terrorists", but if you think about it, those people are more likely to be mutually exclusive.
And I should have further posted out the incorrect argument you used: Uncle Same is making the same argument about email; it's just electrons, reproducible at no cost. The argument made is that when you turn over information to a third party it becomes public, and an e-mail is essentially as private as a postcard. Most ISPs have a clause which says that information may be turned over to a law enforcement agency for the purposes of solving or preventing crimes, so a customer should have the opposite of an expectation of privacy unless that clause is omitted, which is rare. You send an e-mail to your ISP, police ask for it, the ISP decides do I hand this over or ask for a warrant? And it's less expensive to fight because that clause allows turnover. So the third party can divulge information the sender did not intend to have divulged. This is not the exact argument made in the decision, but it is a fairly decent example based on the case law referenced in the decision. I'm not saying it's a valid argument, I'm saying that's the decision.
To me, an e-mail is transmitted by wires which must be "tapped" in order to be read, and cannot be observed otherwise, so the analogy is flawed. Further, this was a (state) subpoena, not a request, and compliance is required under threat of punishment, which makes this coercion rather than volunteered information. The decision does not seem to have addressed these, and hopefully this decision will get overturned at some point based on that and other omissions.