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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
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-----
No. The only one that's really left appears to be the Third, which prevents the quartering of soldiers in private homes.
I am officially gone from
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)
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.
And if soldiers attempt to quarter themselves in your home, there's nothing you're going to be able to do to stop them.
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.
I think that one may have been abused during the Civil War, so even that one has been violated. It just hasn't been continuously violated.
SSC
Let's see...we have three legally purchased firearms in our house, each of which we could take to the range any day we please and blow through as much ammunition as we can until they kick us out.
Yeah, I would say the Second Amendment is still in effect. Stop sensationalising things.
Living With a Nerd
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.
You are thinking of the Revolutionary war. The Civil war was the war between the states. Some four-score and seven years later.
Mod me -1 pedantic, but it only prevents the quartering of soldiers in private homes "without the consent of the Owner".
"No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law."
If a man isn't willing to take some risk for his opinions, either his opinions are no good or he's no good
funny, because there are MANY places in this country where you can't do that... Just because you happen to live in Texas doesn't mean the 2nd isn't being violated.
The US Constitution was ratified in 1788 (though the Bill of Rights was not made effective until 1791, and they were not made to apply to the states in superseding state law until the 'incorporation' under the 20th century 14th Amendment interpretation explicit in cases like Gitlow v. New York), the US Civil War began in 1861. Please, please tell me that you are not a US voter.
I support the Slashcott and will not be reading or commenting from 2/10/14 to 2/17/14. Beta is steaming pile of dog shit
Depends on the state. I live in Arizona and I carry a handgun anytime I feel like it, anywhere but a bank or a federal building. I don't usually, because it's not necessary. Don't try this in California unless you want to see the inside of a jail cell. Gotta love states that can arrest you and convict you for exercising your constitutional rights.
I still cannot find the droids I am looking for...
Federal property aside, I don't believe there is any part of Arizona carry law that specifically pertains to banks. Some banks may post that they prohibit carry and that posting has the effect of law (usually covered as 'trespassing'), but if a bank has no policy then there is no reason you couldn't carry there if you wanted.
I live in VA and during the summer I open carry, and I selected a bank that did not have any objections to my sidearm. It's best to look at the small, local banks (mine has three going on four branches total) because they don't have policy set by faceless functionaries at some huge out-of-state HQ.
I support the Slashcott and will not be reading or commenting from 2/10/14 to 2/17/14. Beta is steaming pile of dog shit
Actually, I live in Maryland...which has some of the most strict gun laws in the nation. Thanks for making assumptions though, I appreciate it.
Living With a Nerd
The sad thing is, a naturalized citizen probably has a higher likelihood of actually knowing this than most natural-born citizens under a certain age. For what it's worth, I got the highest score in my school on the US History state assessment, which I finished in about 45 minutes and still found to be harder than the AP exam, and I am a natural-born citizen... I just didn't sleep through civics class. however, I suspect the GP to be a foreigner not being sent through the ringer of the naturalization process, which is pretty rigorous. Many of the people I've met who knew history and civics the best were naturalized citizens, but the carrot is there for them to bother to learn it.
I know it's popular to think that the government is taking more and more of our rights away, but I don't see how that's the case. For example, in 2008, the Supreme Court dramatically broadened the scope of the Second Amendment to say that the federal government has virtually no power to institute any kind of gun control on federal property. This is obviously an increase in freedom over what had been settled law. The Supreme Court will soon be taking up the issue of whether or not state gun control is legal. I'd say our First Amendment rights have been greatly strengthened too over time. When John Adams was President, he arrested dozens of people for saying things he didn't like. Nowadays, we can say whatever we like about a President. Not only that, it's a lot easier to get an audience, thanks to the Internet. The list goes on and on.
Can you explain how, exactly, our freedoms are less than they formerly were?
I bet he's British.
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.
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.
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...
I think there is a better-than-fair chance of incorporation by the current SCotUS in the Chicago case, to which I'm looking forward with much anticipation. Also, don't forget that almost all states (44 according to wikipedia already ref'ed by jdgeorge) have state constitutional provisions that approximate/mirror the federal constitution.
I support the Slashcott and will not be reading or commenting from 2/10/14 to 2/17/14. Beta is steaming pile of dog shit
That's true, however all banks that I'm aware of post no firearms allowed. If I was carrying my compact concealed I might just wear it anyway - it's not a violation of state law, and all they can do is ask you to leave, but really I only go to the bank a few times a year, and most of those trips are to the drive through.
I still cannot find the droids I am looking for...
With unencrypted email, the communications are broadcast to the world
No, they're unicast to a mailhost.
and expected to pass through many different systems,
Kind of like a letter.
some of them managed by people with no direct relationship with either the sender or the receiver,
I assume you mean the interim switches and routers? Because the mailhosts involved should all be operated by a person or entity with a direct relationship with the sender or receiver in the vast majority of cases.
shouted out to an ethernet on every hop.
Not true. Sometimes they're shouted out to a fiber ring.
And yet, some people are expecting the same sort of legal expectation of privacy to still exist,
Legal expectation of privacy is expected to function even when literal privacy has broken down.
even though from a technical and common sense viewpoints, an expectation of privacy is pretty much diametrically opposite from "reasonable."
And today, we expect to be protected from people watching what we're doing in our houses with the shades drawn, even though the technology exists to do it (e.g. backscatter X-ray.)
Give up.
You give up. Too bad, though. Resistance is more effective when united.
"You're right," Fisheye says. "I should have set it on 'whip' or 'chop.'"
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.
I support the Slashcott and will not be reading or commenting from 2/10/14 to 2/17/14. Beta is steaming pile of dog shit
Tariffs between states did not exist at that time. Perhaps you are confusing the issue of tariffs between the states with export tariffs on agricultural goods? The tariff issue boils down to protectionist tariffs on finished goods (helping the North's industrial base), and export tariffs on agricultural goods (the North wanted the South to sell goods cheaply to them, not to sell goods overseas).
Every president of the US did likewise in time of war. And each time, it wasn't quite as bad. Judge Learned Hand wrote extensively about this; Lincoln was no different (and perhaps a little better wrt rights, even) than prior wartime presidents. Rights are trampled in time of war, then peacetime review finds problems with those actions... so in the next war, rights are trampled a little less. This has held true until, arguably, the current war in Iraq.
You miss the purpose of his campaign. It was not for fun -- it was to demoralize the heart of the insurgency. And it worked, however nauseating it may be in hindsight.
The south would have done the same were they able to. They did, after all, initiate the hostilities. The south's campaign into Pennsylvania was a good example of the south practicing a lot of the same tactics the north would later use in the south... the only reason there wasn't a lot of infrastructure damage is because the south wanted to use the north's rail systems at the front. Had the south been able to get past the front, they would have destroyed northern infrastructure.
I'm a damned yankee, and I look down on much of the south. There's ignorance and stupidity everywhere (present company excepted, of course), but the south seems to have gotten a double helping.
FWIW, I look down on much of the north as well...
"Trolls they were, but filled with the evil will of their master: a fell race..." -- J.R.R. Tolkien on Olog-hai
You have an interesting account of American history. I also find it interesting that you use the terms "we" and "us" so much. Unless you're very, very old; you were not alive during the Civil War. Reconstruction was a very long time ago, we're all Americans again. Why do you write about the Civil War as if it happened to you, and you were personally persecuted?
-Turkey
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
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.
Out of modpoints but really liked a post? 1BDkF6TtmmeZ3yqXbz9yhdYVqRYnwFoXDj
Thank you for the complement.
I've fallen off your lawn, and I can't get up.
You miss the purpose of his campaign. It was not for fun -- it was to demoralize the heart of the insurgency. And it worked, however nauseating it may be in hindsight.
This sort of ends-justify-the-means, history-is-written-by-the-victors mentality is insufficient justification for what should have been and should still be war crimes. I'm a very hawkish, unilateral guy, but in order to have moral authority it is necessary to be 'better' than your adversary. I agree that the South is not some saintly victim, they did their own evils not least of which was Andersonville. That is not justification for more evil. You can fight for the 'right' things the 'wrong' way, which includes the carpet bombing of Dresden and other German cities, the firebombing of Tokyo and other Japanese cities, and the saturation bombing and other indiscriminant behavior in Vietnam.
It would have been better to draw out the conflict, even to a stalemate, than it is to have won by such efforts. It was a stained and sullied victory, which bred generations of continued emnity. If not for external forces (later wars) and homogenization driven in part by carpetbagging, there probably would have been another Civil War already, driven by the treatment of the South by the North (analogous in some way perhaps to the treatment of the Germans by the French after WWI being catalytic in priming German society to accept militarism and aggression leading to WW2).
I support the Slashcott and will not be reading or commenting from 2/10/14 to 2/17/14. Beta is steaming pile of dog shit
Try owning a handgun in the city of Chicago, or New York City.
Learn about Photography Basics.
Of course, to end habeas corpus, you have to have Congress do it. Lincoln declared it on his own authority, a power not proscribed to him. The war also saw the imposition of an income tax, which was then unconstitutional, and the expulsion of many secessionists or advocates of peace in the North to Canada. Similar things went down in the Confederacy, and both sides ran terrible POW camps.
SSC
They won, the Jeffersonian-Madisonian model lost. The theory that a state had some right to secede was thrown in the dumpster of failed ideas. And whatever laws Lincoln broke and whatever mistakes he made (and he made plenty), I'd take him any day over Jefferson Davis.
Whatever the Civil War was about, the Confederacy ultimately lost because of slavery. The British government would dearly have loved to have offered its support to Confederacy, but it was political suicide by the mid-1800s for any British government to offer that kind of support to a state that had the degree of legalized slavery. Ironically, if the Confederacy would have passed its own 13th Amendment, the Brits might very well have given them a hand.
However you turn it, slavery was the South's downfall.
The world's burning. Moped Jesus spotted on I50. Details at 11.
"You did not know anyone who did, as they died before you were born."
Depending on his age, that may or may not be the case. If he happens to be very old, he may have had a grandparent or great grandparent who did, and they probably died when he was very young. I mean think out the time: If he's 90, he was born in 1920, at that time, someone 18 (I know Confederate soliders were not required to be 18, but it gives us a little wiggle room) at the time it started would have been 78 at his birth. So, I mean technically if he's very long lived and from a very long lived line, he may have even been able to speak in complete sentences when a family member who was actually involved in the Civil War passed away. If we reduce the requirement to "alive during" rather than "served in", we can gain another nearly 2 decades of wiggle room.
The odds of that particular scenario are fairly unlikely, but it is *technically* possible...
Your mail comes in an envelope(trivial encryption).
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
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.
Thank you.
Too many geeks around here seem to think "privacy" is the same as "security".
You don't encrypt your email or seal your correspondence in a tamper-proof opaque envelope because you want privacy, you do that because you want your private email to be secure against someone violating your privacy. Not to create the concept of expectation of privacy in the first place.
If that were the case, the 4th Amendment search and seizure clause would be pointless. "You can't read someone's private correspondence, unless you can, in which case it isn't private".
The enemies of Democracy are