Want My E-Mail? Get a Warrant

InternetNews.com ^ | 6/19/2007 | Roy Mark

[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."

[XR7]

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."

[George W. Bush]

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.

[XR7]

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.

[AFreeBird]

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.

[AFreeBird]

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...

[Ken H]

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.

[George W. Bush]

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

[Ken H]

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.

[Ken H]

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.

[sgtbono2002]

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

[kevkrom]

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.

[haplesswanderer]

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.

[Glenn]

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?

[Still Thinking]

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?

[Still Thinking]

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

[Still Thinking]

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

[Still Thinking]

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.