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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
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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/
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Version: GnuPG/MacGPG2 v2.0.14 (Darwin)
Comment: Use GnuPG with Firefox : http://getfiregpg.org/ (Version: 0.7.10)
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1yfiGTlXropncPeFhX0BAIaYlc1iecFMV3CE2G2w7zZXO7pNlWEVqHS0yD9J2Z3j
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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.
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.
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
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.
You are thinking of the Revolutionary war. The Civil war was the war between the states. Some four-score and seven years later.
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
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.
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?
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.
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.
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
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.
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