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."

Comments

Once again

[Pojut]

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

Encryption

[outofpaper]

-----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-----

Re:Encryption

[gzipped_tar]

Unfortunately, /. sometimes sees a GPG-signed message as junk that fails to pass its bullshit "bullshit filter". Especially when you use SHA512 as the hash function.

Filter error: That's an awful long string of letters there.

Why the law is so hard to understand...

[MikeRT]

To the outrage of a number of people I've met, I've suggested that the legal profession is actually not inherently an extremely intellectually rigorous profession on the grounds that most of its "complexities" are what programmers and engineers call "hacks" and in more layman terms, "making shit up as you go along." Exhibit A:

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.

Exhibit B:

The Supreme Court “consistently has held that a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties.”

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.

Re:I've said it before, and I'll say it again..

[betterunixthanunix]

Sadly, most people see encryption as an annoyance that prevents them from checking their email on random computers. They do not frankly care about whether the government reads their mail, "I have nothing hide," etc. Convenience trumps all, always.

Re:What do you expect from ancient judges?

[Jenming]

In order for Fourth Amendment protections to apply, the person invoking the protection must have an objectively reasonable expectation of privacy in the place searched or item seized.

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.

Re:Email is like Postcards....

[Null Nihils]

I strongly disagree. I've said it before, I'll say it again: 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. (You can encrypt the text of your postal-mail letters, but one already has an expectation of privacy, so few people bother. Same as e-mail.)

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" (via GUI icons, ISP adverts, etc), the average user is not unreasonable in expecting privacy.

It should be obvious that the 4th amendment applies to e-mail.

The law is NOT silent. 4th amendment says it all.

[fyngyrz]

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.

Re:What do you expect from ancient judges?

[Trails]

It's not "fair game". The constitution grants protection against unreasonable searches and seizures. Just because you leave something sitting on your porch does not give the gov't a right to walk up and grab it.

Further, the presence of https is encryption simply between the user and their immediate provider. It has nothing to do with the format of the message on the server or in transit, hence it is irrelevant to this discussion. It is not, as you put it, "end-to-end". Something like PGP would be. That being said, the concept of having to actively add security in order to protect yourself from unwarranted search and seizure by the gov't is preposterous on its face, and certainly contrary to the spirit of the US constitution. The onus is on the government to provide just cause, not on the citizens to protect themselves from intrusive gov't measures.

Re:Other Amendments

[ElectricTurtle]

Not that I'm trying to get you to switch banks or anything, but I just want to make sure you know that there are banks in AZ that are accommodating. I hear that TruWest Credit Union has a policy to not exceed state law. Other people in that thread have noted tolerance from Chase, Bank of America, and Hughes FCU.

Re:And you shouldn't trust the summary

[IndustrialComplex]

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.

So how the hell do you seal that post card in an envelope that is trivial to open. Mail envelopes CAN be opened by ANYBODY (Even the carrier if they wanted to) That doesn't mean it is legal to do something just because you can. Email should be the same way.

You can't just say encryption, because encryption is not trival to open like an envelope, I'd have to ensure that EVERYONE I ever wanted to send an email to has a special bit of equipment (software) that has been setup. Could you imagine if the only way your mail was secure was if you had to encase it in a metal envelope that was welded shut?

Just because someone COULD read the message doesn't mean that it shouldn't be protected and treated as if the person just passes it along. This concept of 'sufficient' measures to ensure privacy is getting insane.

Re:The law is NOT silent. 4th amendment says it al

[fyngyrz]

that's pre-9/11 thinking.

Thank you for the complement.

Re:Other Amendments

[lwsimon]

Try owning a handgun in the city of Chicago, or New York City.

Re:Case Summary

[Cytotoxic]

Holy crap, that was a terrifying read. Basically the appeals court found that the prosecutor and cop in the case were granted Absolute Immunity from prosecution for their actions in intentionally framing this guy for multiple felony and misdemeanor crimes. The appeals court found that the plaintiff did indeed get falsely accused, and that the prosecutor knowingly participated in presenting false testimony to get indictments - but the poor guy has no recourse.