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Want My E-Mail? Get a Warrant
InternetNews.com ^ | 6/19/2007 | Roy Mark

Posted on 06/19/2007 10:21:09 AM PDT by oblomov

The federal government can no longer seize and read e-mail without a search warrant, a federal appeals court ruled Monday. Americans, the court said, have the same reasonable expectation of privacy for e-mail as they do telephone calls and snail mail.

The unanimous decision of the 6th U.S. Circuit Court of Appeals upholds a district court ruling that the government cannot use the federal Stored Communications Act (SCA) to secretly obtain stored e-mail without a warrant or prior notice to the e-mail account holder.

"We have little difficulty agreeing with the district court that individuals maintain a reasonable expectation of privacy in e-mails that are stored with, or sent or received through, a commercial Internet service provider," the court ruled. "The content of e-mail is something that the user 'seeks to preserve as private,' and therefore 'may be constitutionally protected.'"

The court added, "It goes without saying that like the telephone earlier in our history, e-mail is an ever-increasing mode of private communication, and protecting shared communications through this medium is as important to Fourth Amendment principles today as protecting telephone conversations has been in the past."

(Excerpt) Read more at internetnews.com ...


TOPICS: Constitution/Conservatism; Front Page News; Government; News/Current Events
KEYWORDS: 4thamendment; email; fourthamendment; govwatch; judicialtyrrany; privacy; warshak
A good decision, in my opinion...
1 posted on 06/19/2007 10:21:14 AM PDT by oblomov
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To: oblomov

The one place where the analogy to postal mail breaks down, however, is that most email users make absolutely NO effort to keep their messages private. Without using encryption on their messaging, it’s the equivalent of sending postal mail solely on postcards instead of in envelopes.


2 posted on 06/19/2007 10:26:07 AM PDT by kevkrom ("Government is too important to leave up to the government" - Fred Dalton Thompson)
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To: oblomov

does this mean Congress can’t get ahold of Karl Rove’s emails?


3 posted on 06/19/2007 10:27:13 AM PDT by balch3
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To: kevkrom
equivalent of sending postal mail solely on postcards instead of in envelopes

Still, it's not legal for you to open someone's mailbox to read any postcards you may find in there. I'm pretty sure that the feds would have to have a warrant to look at it when it's at the post office. IANAL, so I could be wrong.

But I DO encrypt email I expect SOME privacy on, as should others.

4 posted on 06/19/2007 10:33:38 AM PDT by American_Centurion (No, I don't trust the government to automatically do the right thing.)
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To: American_Centurion

I’m not saying I disagree with the ruling — far from it. I just wanted to address that particular fallacy., because sooner or later, some clever government authoritarian type is going to use as an argument that people who send messages in plain text over public-access lines shouldn’t have any expectation of privacy.


5 posted on 06/19/2007 10:36:31 AM PDT by kevkrom ("Government is too important to leave up to the government" - Fred Dalton Thompson)
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To: kevkrom
...sooner or later, some clever government authoritarian type is going to use as an argument that people who send messages in plain text over public-access lines shouldn’t have any expectation of privacy.

Well it looks like with this court ruling it's a little too late for some government authoritarian to now make that call.

6 posted on 06/19/2007 10:39:56 AM PDT by Alas Babylon!
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To: American_Centurion
I think that every email every sent is setting on a server somewhere. There is another subtle difference. There undoubtedly are Federal Government computer programs which use very complex artificial intelligence which “scan” each message looking for intelligence of interest. When it hits the Internet, it is the wild, wild west. If you believe otherwise I have a bridge in Brooklyn ... Think of the ChiComs, india, and Russia also.
7 posted on 06/19/2007 10:40:17 AM PDT by Citizen Tom Paine (Swift as the wind; Calmly majestic as a forest; Steady as the mountains.)
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To: oblomov
Continuing my previous post concerning electronic communication privacy. Every phone call to a Pentagon prefix is intercepted by the Russian Embassy in Washington, DC and transmitted to Cuba for processing. This was reported in the Washington Post 10 to 15 years ago. The joke was when you called the Pentagon, you didn’t know who was listening.
8 posted on 06/19/2007 10:48:25 AM PDT by Citizen Tom Paine (Swift as the wind; Calmly majestic as a forest; Steady as the mountains.)
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To: All

Now we just need to get rid of that illegal Patriot Act ...


9 posted on 06/19/2007 11:34:24 AM PDT by haplesswanderer (Ron Paul 2008 - End the Fed, Fire the IRS, NO NORTH AMERICAN UNION!)
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To: oblomov

awesome ruling. We get so little good news these days...


10 posted on 06/19/2007 11:57:26 AM PDT by zeugma (Don't Want illegal Alien Amnesty? Call 800-417-7666)
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To: kevkrom
The one place where the analogy to postal mail breaks down, however, is that most email users make absolutely NO effort to keep their messages private. Without using encryption on their messaging, it’s the equivalent of sending postal mail solely on postcards instead of in envelopes.

I totally disagree. Encryption should be analogized to writing postal mail in code.
11 posted on 06/19/2007 12:10:42 PM PDT by HaveHadEnough
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To: oblomov

Good. They should have to get a specific warrant for any search of anything. This is a step in the right direction.


12 posted on 06/19/2007 12:15:32 PM PDT by mysterio
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To: oblomov
A good decision, in my opinion...

I agree.

The police can still get a warrant if they're tracking a criminal. They just can't treat us all like criminals on a whim.

Nice to see a court respecting our right to privacy. Rare these days.

13 posted on 06/19/2007 12:38:29 PM PDT by highball ("I never should have switched from scotch to martinis." -- the last words of Humphrey Bogart)
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To: oblomov

His base dwindles, now the PATRIOT Act is sinking.


14 posted on 06/19/2007 1:00:46 PM PDT by wastedyears (Check my profile for links to anti-illegal immigration T-shirts.)
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To: oblomov

I agree! Great decision! Get the government out of our lives!!!!


15 posted on 06/19/2007 1:02:08 PM PDT by napscoordinator
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To: oblomov

Ruling sounds good to me, especially when we have an Attorney General who is more interested in porn than in defending the borders. Gonzales is probably a closet pervert.


16 posted on 06/19/2007 2:16:23 PM PDT by montag813
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To: oblomov
While I agree with this decision, does the gov now have to inform jihadists when investigating a terrorist cell that they will be reading ‘their’ email?
17 posted on 06/19/2007 3:25:22 PM PDT by free_life
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To: kevkrom

But it wasn’t addressed to the government.

The same with my snail mail in the garbage can. Just because it’s dumped doesn’t make it, in my mind, addressed to them.


18 posted on 06/19/2007 4:06:23 PM PDT by xzins (Retired Army Chaplain And Proud of It! Those who support the troops will pray for them to WIN!)
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To: oblomov

Yes, a very good decision.


19 posted on 06/19/2007 4:21:38 PM PDT by arderkrag (Libertarian Nutcase (Political Compass Coordinates: 9.00, -2.62 - www.politicalcompass.org))
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To: free_life
does the gov now have to inform jihadists when investigating a terrorist cell that they will be reading ‘their’ email?

No, they just have to get a warrant.

20 posted on 06/19/2007 4:31:28 PM PDT by Regulator
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To: oblomov
What they should have said:

"It goes without saying that >even more than< like the telephone earlier in our history, e-mail is an ever-increasing mode of private communication, and protecting shared communications through this medium is as important to Fourth Amendment principles today as protecting telephone conversations has been in the past."

21 posted on 06/19/2007 5:38:58 PM PDT by XR7
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To: haplesswanderer
Now we just need to get rid of that illegal Patriot Act ...

It's not merely illegal, it's unconstitutional.

I cannot believe Alito and Roberts and Scalia will let it continue to stand in its present form.
22 posted on 06/19/2007 5:47:55 PM PDT by George W. Bush (Rudi & McVain: tough on terror, scared of Iowa)
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To: free_life
While I agree with this decision, does the gov now have to inform jihadists when investigating a terrorist cell that they will be reading ‘their’ email?

Without an actual declaration of war, yes.
And without one, and without a mobilization of the entire nation to fight the enemy, the so-called "war on terrorism" will never end.


23 posted on 06/19/2007 5:50:19 PM PDT by XR7
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To: kevkrom
Yep, personal mail via postcard, that's what unencrypted email is.

What gets me is that PGP is out there, and for the most part free, for all computing platforms. And while it may, or may not hold up to the the scrutiny of the NSA Cray Acres, it's a start.

We should all start getting friends and family to start using it.

24 posted on 06/19/2007 8:31:00 PM PDT by AFreeBird (Will NOT vote for Rudy. <--- notice the period)
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To: American_Centurion
Still, it's not legal for you to open someone's mailbox to read any postcards you may find in there. I'm pretty sure that the feds would have to have a warrant to look at it when it's at the post office.

I suppose technically you're correct. However, the nature of a postcard being what it is; you can't keep the people handling it from reading it, and if say a postal worker called in sick and was replaced by someone else... who happens to work for the TLA (Three Letter Agency) of your choosing.

Well...

25 posted on 06/19/2007 8:36:02 PM PDT by AFreeBird (Will NOT vote for Rudy. <--- notice the period)
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To: kevkrom
The one place where the analogy to postal mail breaks down, however, is that most email users make absolutely NO effort to keep their messages private. Without using encryption on their messaging, it's the equivalent of sending postal mail solely on postcards instead of in envelopes.

I don't get the postcard analogy. Don't you have to click on an email to open and read it? That seems the equivalent of opening an envelope.

26 posted on 06/19/2007 9:24:34 PM PDT by Ken H
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To: Ken H
Don't you have to click on an email to open and read it? That seems the equivalent of opening an envelope.

No. They can install a device at your ISP to trap all your emails and send copies to them. The ISP will be ordered to keep it confidential or go to prison.

You can also put high-speed sniffers and minicomputers to route copies of all traffic over a portion of the Internet backbone and read all the email and web pages and files being transferred and pin those to IP addresses. If something is suspicious, they can get a warrant to make your ISP identify you by name/address so you can be arrested or subpoenaed or whatever.

There's the Patriot Act then. And this court is trying to clip its wings by making them get a subpoena from a judge first, like a wiretap.

Oh, and your employer has the right to read all your email too. They can dig back years and mine all those old emails for any wrongdoing. Interestingly enough, there are also laws requiring government to keep all of its old emails as well and that is part of the scandal over email from 88 officials at the White House which were posted via the RNC server to keep them out of the official record.

Slashdot | White House E-mail Scandal Widens
"These e-mail accounts were used by White House officials for official purposes, such as communicating with federal agencies about federal appointments and policies... Given the heavy reliance by White House officials on RNC e-mail accounts, the high rank of the White House officials involved, and the large quantity of missing e-mails, the potential violation of the Presidential Records Act may be extensive."
Via: White House Aides' E-Mail Records Gone - washingtonpost.com
27 posted on 06/19/2007 10:21:38 PM PDT by George W. Bush (Rudi & McVain: tough on terror, scared of Iowa)
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To: George W. Bush
My point is that some positive action is needed to see the contents of an email - such as clicking on it, or the more elaborate ways you outlined.

This is not the case with a postcard, and that's where I think the analogy is flawed. Reading an email seems more like opening an envelope and reading a letter.

28 posted on 06/19/2007 11:21:57 PM PDT by Ken H
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To: AFreeBird
personal mail via postcard, that's what unencrypted email is.

If someone leaves a postcard out in the open in a public place - say on the lunch counter at work - I think everyone would agree that the message on the postcard is fair game for reading.

Now, suppose someone leaves an envelope with a letter enclosed on the lunch counter. Like unencrypted email, it would be very easy to open the envelope and read the letter, but I doubt anyone would think it was proper.

29 posted on 06/19/2007 11:47:40 PM PDT by Ken H
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To: oblomov

This is sure going to screw up a lot of cop shows on TV.


30 posted on 06/20/2007 5:31:37 AM PDT by sgtbono2002 (http://www.imwithfred.com/index.aspx)
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To: Ken H
I don't get the postcard analogy. Don't you have to click on an email to open and read it? That seems the equivalent of opening an envelope.

An unencrypted email (or message board post, or whatever), is sent over an open channel. Anyone with access to that channel is able to read the content of the messages sent without disrupting the message at all.

31 posted on 06/20/2007 8:35:50 AM PDT by kevkrom ("Government is too important to leave up to the government" - Fred Dalton Thompson)
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To: George W. Bush

GWB said: It’s not merely illegal, it’s unconstitutional.

That’s right! And it’s just plain wrong from a human standpoint. The only good government is small government. I’m glad to see the Republican party waking up on the grassroots level. A year ago people like us were ridiculed on FR.


32 posted on 06/20/2007 2:28:58 PM PDT by haplesswanderer (Ron Paul 2008 - End the Fed, Fire the IRS, NO NORTH AMERICAN UNION!)
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To: kevkrom
Anyone with access to that channel is able to read the content of the messages sent without disrupting the message at all.

I see now. Does that mean that Echelon will soon be defunded?

33 posted on 06/20/2007 2:31:26 PM PDT by Glenn (Free Venezuela!)
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To: oblomov

I can’t understand the stance of many companies today. They voluntarily provide customer information to government entities when not required by law or court order to do so.

The BOR and other laws that provide that government must pass certain hurdles in dealing with citizens were put in place because of what wise mean feared an out-of-control governemt would make life like for us. It’s healthy to assume that the government is overstepping their bounds and make them do the legwork to prove otherwise. It keeps them honest and keeps them from getting lazy.

Companies have a responsibility to their customers. Absent written documentation that the government has completed the legal steps they are required to take before obtaining information about a person, the companies should assume that they would have been unable to do so, and refuse the information.

Who are they to waive OUR rights for us?


34 posted on 06/25/2007 9:11:46 AM PDT by Still Thinking (Quis custodiet ipsos custodes?)
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To: montag813

Yeah, he has to have all the ‘evidence’ sent to him for review!


35 posted on 06/25/2007 9:15:31 AM PDT by Still Thinking (Quis custodiet ipsos custodes?)
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To: George W. Bush

Scalia never say a law or a LEO he didn’t like. What will surprise me is when THOMAS upholds it.


36 posted on 06/25/2007 9:17:25 AM PDT by Still Thinking (Quis custodiet ipsos custodes?)
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To: AFreeBird

Or even if the postcard contained some evidence of a crime or conspiracy, and it was the normal postal worker who happenned to catch a couple words in passing, then read the whole thing, then called the fibbies. That would no doubt be admissible.


37 posted on 06/25/2007 9:19:40 AM PDT by Still Thinking (Quis custodiet ipsos custodes?)
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