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PA Supreme Court Decides if Reading Email==Wiretap 285

Posted by CmdrTaco from the this-won't-stop-here dept.
An anonymous reader noted that "Excite is reporting that the Pennsylvania Supreme Court is taking up a case to decide the question may police look at a suspect's email and instant messages without first obtaining a court order. The defendant, a former police officer, is also claiming his Fourth Amendment privacy rights were also violated. The outcome will only affect Pennsylvania but the issues at hand may eventually reach the US Supreme Court." Umm... Duh?
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PA Supreme Court Decides if Reading Email==Wiretap More

PA Supreme Court Decides if Reading Email==Wiretap

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  • duh??? (Score:3, Insightful)

    by craigeyb ( 518670 ) on Wednesday February 20, 2002 @11:42AM (#3037982) Homepage

    This is by no means an obvious case. The difference between intercepting Internet communications and, say, communications on a phone line, is that the Internet is inherently unsafe, and information is publicly available. Every packet you send can be examined along each router through which is passes.

    • Re:duh??? (Score:2, Interesting)

      by taliver ( 174409 )
      So really it comes down to asking if people can have an expectation of privacy.

      I'm going to say it will probably be no. Police are allowed to monitor cordless phone conversations without a warrant, even though people might not realize that those conversations are being broadcast.

      In a similar way, if I sit downstream for you on a cable line or LAN, I most certainly can listen to conversations without doing too much intrusion. Maybe people will begin to pay attention to security if this keeps happening.

        1. Reading email sitting on the server someplace
        2. Me giving email or chat logs, that I was a particpant in to the police.
        3. The police trapping the data between any of the computers.

        They all map into the the real world. #1 Reading email from a server, would require some sort of search warrant. #2 The email question would be the same as if I wrote you a note. #3 has already been considered a wiretap.


        The dispute in this case is in the chat logs. Where it is known that it can be logged, would be akin to having signs that say, "Your conversation may be recorded.".

    • "Every packet you send can be examined along each router through which is passes."

      And every phone call you make can be examined at any of the TELCO offices through which it passes. Your point being?

      Oh, maybe you thought that just because it is somewhat easier to snoop internet traffic that it is therefore OK. The whole point of protections against unwarranted search and seizure is to say that the authorities aren't even allowed to try.

      • Oh, maybe you thought that just because it is somewhat easier to snoop internet traffic that it is therefore OK. The whole point of protections against unwarranted search and seizure is to say that the authorities aren't even allowed to try.

        I make no argument about the moral correctness of snooping. Personally, I like nearly every court case that restricts the power of the government. However, my point is that in terms of how the court will interpret the relevant laws regarding this matter, it's not obvious.

        The phone network is highly regulated in the laws, and the Internet is not. In addition, packets may be sent whichever direction on the Internet in order to arrive at their destination. The sender has no control over who gets to see the packets. It seems that yes, there is indeed a difference that the courts may rule differently.

    • Re:duh??? (Score:3, Informative)

      by Amarok.Org ( 514102 )
      I believe the "duh" was in reference to "The outcome will only affect Pennsylvania but the issues at hand may eventually reach the US Supreme Court."

      Since both sides have such an important stake, it's likely that the loser will appeal it to the US Supreme Court. It will also affect other states even if it doesn't reach the US Supreme Court, since other states and entities will use (at least in part) the findings of Pennsylvania to support their own cases.

      • I don't see why this would go to the Supreme Court. There doesn't seem to be a federal issue in the case.
        • I don't know what the fourth ammedment to the PA constitution says, but I assume they are alleging violations under the Fourth Ammendment to the US Constitution.
          THAT is a federal issue.

        • I don't see why this would go to the Supreme Court. There doesn't seem to be a federal issue in the case.
          Well, the federal issue would be PA allowing a search and seizure (wiretap) without adequate 4th Amendment protections. You see, a state can restrict itself more than the Constitution specifies, but it can't override protections provided by the Constitution.

          Note: I haven't RTFA, so I make no claims as to the strength of this freak's 4th amendment claims, I'm just pointing out the federal issue.

          -sk

          • Re:duh??? (Score:2, Insightful)

            by anthony_dipierro ( 543308 )

            Well, the federal issue would be PA allowing a search and seizure (wiretap) without adequate 4th Amendment protections.

            There was no search and seizure. The tapes were obtained with the permission of the owner.

            Note: I haven't RTFA, so I make no claims as to the strength of this freak's 4th amendment claims, I'm just pointing out the federal issue.

            Not RTFA on slashdot is only possible if you assume that the editors screwed all the facts up and jumped to every conclusion possible. There was no search and seizure. There is no federal issue. Actually, I'll rephrase that, since I haven't read the actual case. There is nothing in the article which points to a fourth ammendment issue.

      • Actually I think the duh was saying "Of course email and IM are just like a phone conversation, howc ould anyone think differently?"

    • Re:duh??? (Score:2, Interesting)

      by petree ( 16551 )
      This is by no means an obvious case. The difference between intercepting Internet communications and, say, communications on a phone line, is that the Internet is inherently unsafe, and information is publicly available. Every packet you send can be examined along each router through which is passes.

      Wouldn't this also be true of telephone conversations? Before the advent of digital communications, wasn't a telephone connection merely a connection of two phones sending information in a manor that was inherantly unsafe? I knew that anyone who could splice wire could listen to my conversation. Does that make it so that wiretapping laws don't apply? Think again. The only issue at hand is what is continually happening: People (Courts, Police, General Population, etc) believe that just because something is digital different laws should apply. Just as someone with a clue can open a letter in the post office (read: police officer) and reseal it without me knowing, someone can read your IMs. If this is upheld in court, I don't understand what is stopping polic from just reading mail.
    • And you think a phone line is much more secure? Anyone with a lineman's handset can clip on at your demarc point or the little gray canister in your neighborhood where all the lines concentrate. It can be intercepted easily at the central office... or at the central office of the person the call is going to, or at their neighborhood canister or their demarc point... And that is without even talking about cell phones, especially analog ones, which any older TV set or scanner can listen in on...

    • Re:duh??? (Score:5, Insightful)

      by GreyPoopon ( 411036 ) <gpoopon@gmaOOOil.com minus threevowels> on Wednesday February 20, 2002 @12:22PM (#3038252)
      It's even worse than that. I can't believe that the PA Supreme Court is willing to hear the case. The prosecution got their evidence FROM THE GIRL. Let's put it into the proper light. Pretend that you are a 15 year old girl. Let's also pretent that I continuously send you mail through USPS with a nude photograph of myself (*shudder*) and I keep trying to get you to send me nude videos of yourself and engage in illegal sexual contact with me. If you take the mail I send you to the police, and they arrest me, would I be able to complain about violation of my privacy? Give me a break. If you want something to be private, don't send it in an email to someone else you can't trust.

      Although the press may be making this case out to be a landmark "reading email == wire tapping" case, it really isn't. It would have been different if the police were intercepting his email before it got to its recipient, or using spyware to read it from his computer.

      • Re:duh??? (Score:3, Insightful)

        by Rupert ( 28001 )
        The (somewhat weak) defence argument is that IMs are transitory, like phone calls, and you can't log them without the permission of all parties involved.

        Since anyone who knows anyone who uses IM knows that messages are routinely logged, this argument is basically a legal appeal against reality.

        Oh, and I hope he loses.
    • Ok, the entire packet isn't examined, only the full header or parts of the header depending on the routing protocol.

      Routers examine headers, but they will not read up beyond the transport layer of the OSI model. So a router will not read the "data" that is up in the application layer being transmitted in the packet. So no, beyond the headers, routers cannot "read" any data in a packet.

      A sniffer is a separate device that simply grabs packets off the line. It does no routing and does not pass those packets back onto the line. It displays the entire contents of the packet, not just the headers. It is a separate entity from a router, the sniffer does not drop packets back onto the line.

      If you have a PC set up as a router, then sure you can have a sniffer running on that PC as well. But that's not what most of the Cisco routers are doing out there- routers are designed to read the first few bytes of the packet to determine where it's going then zip it on its way.

      The Internet is unsafe only in that you don't know who has put a sniffer device along the wire. However, if you know there's no sniffer on your side of the demarc, the only real threat is the ISP, an employee thereof, or on behalf of the Feds.

      The data passing on the wire is NOT publicly available, at least not technically. I'm not sure about the legality of the data on the wire, but you as a public citizen cannot walk into an ISP and plug in your laptop to sniff the data. Unless you Tempest or something, you cannot see the data on my DSL. So no, it's not "publicly" available, no more than my conversations on a (non-cordless) phone line.

    • That's like saying it's legal for me to steal your CDs because you left your car windows down. That would certainly be easy (far easier than examining packets in a router since anyone can do it), but easy is not the same as legal.

      The only thing non-obvious about this case is whether reading someone elses email is illegal like tapping a phone without a warrant or illegal like opening someone else's snail mail.

  • Hmm... (Score:2, Insightful)

    by Psmylie ( 169236 )
    It seems to me that any time during the course of an investigation you intercept a communication intended to be private that it should require a court order... But after all, if it involves the internet, common sense doesn't apply (legally speaking, at least).

    • It seems to me that any time during the course of an investigation you intercept a communication intended to be private that it should require a court order...

      Did you read the article? Nothing was "intercepted". Some pervert solicited sex from a 15 year old girl. That 15 year old girl turned over the transcripts. Now that pervert wants to supress that evidence.

      • Nope, I didn't read the article before I posted. Usually I do, but this time I was replying to the header and not the content of the article. Sorry. Admittedly, I jumped the gun on that post.
        If this were a case of the investigators intercepting a communication, then yes, they should obtain a court order, IMHO. However, this is a case of someone turning over evidence of wrongdoing, and should be allowed.

        Sorry, I'm apparently set to "idiot mode" today.

  • Depends on how the IMs were acquired. (Score:4, Insightful)

    by base3 ( 539820 ) on Wednesday February 20, 2002 @11:42AM (#3037985)
    The article doesn't make clear whether the instant messages that are being used at trial were made available by the girl (or her parent/guardian). The Slashdot headline seems to want to lead us to think that the police were sniffing the defendant's wire.

    If that's not the case, then no "wiretap" has taken place--a party to the conversation turned over the logs to the police, and they are admissible at trial.

    • Actually that isnt quite true - from the article : Though federal law only requires the consent of one person before a telephone call or Internet communication can be recorded, Pennsylvania and 11 other states require the consent of all parties.

      This is the same thing that suppressed some evidence in the clinton scandal, the tape recordings of monica talking about her affair weren't admissable (and got ugly whats-her-face in trouble)
      • This is the same thing that suppressed some evidence in the clinton scandal, the tape recordings of monica talking about her affair weren't admissable (and got ugly whats-her-face in trouble)

        This situation doesn't make sense to me. In the Clinton-Monica case, Monica wasn't a victim (at least not in any normal sense of the word.)

        In the Pennsylvania case, the victim went to the police after getting requests for sex from the perp. Am I being told that the victim wasn't allowed to do this (and, as an extension, because the victim didn't get the perp's permission first, that she's now a criminal for having gone to the police?)

    • OK--a closer reading tell me:

      - the messages were intercepted after the fact. So there was no wiretap

      but

      - PA is a "two-party" state. To me, that means that the girl (or parent/guardian) would be theoretically subject to separate prosecution (a la Linda Tripp) for giving up the messages (if they are indeed considered to be the same as recording a phone converstaion, which I find doubtful) but they should still be admissible in this case.

      • I started out agreeing with you, however on further reflection :

        I believe the two party rules talk about if you are allowed to record a communication or not (As was the case with linda tripp). However, with Email, or IM, a recording is inherent in the process. (Well, ICQ automatically saves history, others may as well)

        In this case, no two party permission would be required to record, because it is implicit in the medium. Rather like sending a letter, of course you have a copy.

        Then the argument turns to if turning over a legally made recording is okay. I again refer to the snail-mail metaphor. If you mail me something, is it mine to show to whoever I want? (Assuming there isn't an NDA or something around - and in this case, an NDA would be voided, because a contract which prevented diclosure of illegal acts would be void) I believe the answer is yes, once a recording exists from a legal source, any one in possesion of that recording can show it to whoever they want.

        Therefore the emails can be turned over wihtout any issues.
      • PA is a "two-party" state. To me, that means that the girl (or parent/guardian) would be theoretically subject to separate prosecution (a la Linda Tripp) for giving up the messages (if they are indeed considered to be the same as recording a phone converstaion, which I find doubtful) but they should still be admissible in this case.

        This is just plain wrong. Does this mean the teenage girl is a criminal for having gone to the authorities?

    • But in Penn (Score:4, Interesting)

      by OctaneZ ( 73357 ) <ben-slashdot2@um ... g ['.li' in gap]> on Wednesday February 20, 2002 @11:56AM (#3038091) Journal
      The article states that:
      Though federal law only requires the consent of one person before a telephone call or Internet communication can be recorded, Pennsylvania and 11 other states require the consent of all parties.

      So it is not simply that one participant alowed the police to view the logs. Unless we are taking as a presuming that everyone assumes that all conversations are recorded/logged by both parties. While agree that the topic may be a little misleading, this is also going to be an interesting case to follow.

      An interesting turn would be if the court ruled that the girl logging (if that is in fact what was turned over) was a violoation of the other users privacy right as he did not consent to her logging the conversation.

      -OctZ
      • An interesting turn would be if the court ruled that the girl logging (if that is in fact what was turned over) was a violoation of the other users privacy right as he did not consent to her logging the conversation.

        That's what I suspect might be the case--that she technically violated the wiretap law. The happiest outcome for me would be that it is allowed into evidence, the guy goes to pound-me-in-the-ass prison for propositioning an underage girl, then the girl gets a slap on the wrist (or isn't even prosecuted) for logging the converstation.

        Even better would be for the courts to consider that an AIM or similar session does not constitute a "telephone call" for the purposes of the PA legislation. (I doubt the words "internet conversation" appear in the actual PA one-party law--I bet that's an interpretation on the journalist's part.)

    • Well, if they were obtained by login or just by turning on the computer instead, I'd still hope police would need a warrant for that. They need a warrant to carry off my paper correspondence.

      Of course it's all moot if the documents were made available voluntarily. IANAL.
    • From the article:
      The court also said the wiretapping law did not apply because police did not intercept Proetto's messages as he was sending them, but after the fact.


      Looks to me like logs. I'd agree that wiretapping laws wouldn't apply (seems more like an answering machine tape). Does anybody know the admissability of log files? Is it possible that she only turned on file logging after the police requested it? Would that then fall under wiretapping, as she was only recording based on police request?
      • The article doesn't make clear whether the instant messages that are being used at trial were made available by the girl

      It's a good point, but it reads as being most likely that they were obtained by the entrapping agent, after the victim's emails were handed over.

      In either case, the messages were submitted to law enforcement and then as evidence after reaching the intended recipient. No third party tap took place. As you say, this isn't a wiretap issue. It's arguable that you might have a reasonable expectation that an IM (but not an email) would not be recorded. Given that most IM clients have one click session logging though, it's rather stretching the argument. If the guy asked if the "girl" was logging it, and the agent lied, then he's got a good chance, but I doubt very much if he did.

      It'll be interesting to see what the court makes of the IM's, but email simply has to be viewed as persistent. The recipient gets a persistent copy, you know they do, and you really can't have a beef about it being submitted as evidence. Hopefully the conviction can stand just on the email evidence, regardless of how they rule on the IM.

    • Re:Depends on how the IMs were acquired. (Score:4, Insightful)

      by Tackhead ( 54550 ) on Wednesday February 20, 2002 @01:16PM (#3038693)
      > If that's not the case, then no "wiretap" has taken place--a party to the conversation turned over the logs to the police, and they are admissible at trial.

      IMNSHO, the article makes it pretty clear that the cops didn't sniff anything. The girl called the cops and turned over the logs.

      The scumb^H^H^H^H^Hdefendant then pulled the same stunt chatting to a detective posing as another girl. Even if the initial logs weren't admissible, the logs of this conversation, IMNSHO, would be, as they were part of an investigation. (It ain't entrapment, since Joe Scumbag wasn't asked to solicit sex from the detective - Joe did it all by himself. Yes, I'm presuming a basic level competence on the part of the cops here. "How not to entrap" is something they teach in Cop School 101.)

      The only reason I can think of that the first logs wouldn't be admissible is because (unlike phone messages) IM logs can be trivially forged (think "5 minutes with a hex editor", if not "30 seconds with a text editor", and might constitute "hearsay" and thus be inadmissible.

      If (very plausibly!) the girl didn't know how to forge the logs, and/or she testified that the logs weren't forged, I'd say there's still enough to get a court order to ask the IM server if, indeed, messages were sent.

      So we pick up the trail from there. Maybe the IM server only knows that a message went from IP address xx.xx.xx.xx to yy.yy.yy.yy on a certain date/time (and knows nothing of the content of that message). But if all of those entries match the date/timestamps on the girl's logs, and if the ISPs, when asked (via another court order) "which of your users had these IP address at these times" answer "Joe Scumbag was on xx.xx.xx.xx at that date" and "Jane Doe was on yy.yy.yy.yy at that date", and Joe's ISP says "The radius logs show that xx.xx.xx.xx was logged into via his account and his phone number, and the phone company's logs confirm that someone from his house called his ISP at that time", I'd say you have a pretty open-and-shut case.

      To summarize, saying "I got an ICQ message" might not be admissible.

      Saying "I got an ICQ message, AOL's logs confirm it, the ISP's logs tell me who it was, and where he called from, and the phone company's logs confirm it" is another kettle of fish entirely.

      Under some circumstances, I might have reasonable doubt that someone forged an ICQ message.

      But I cannot fathom anyone 31337 enough to forge an ICQ message, an ICQ-message-sent log on AOL's server, steal Joe Scumbag's password to dial in to an ISP using his account, hack the ISP's Radius server logs to reflect Joe Scumbag's phone number instead of 37337-h4x0r's number, and then hack the local phone provider's logs to make it looks like Joe Scumbag was on the phone to his ISP at that time.

      I'm not alleging that the trail of evidence in this case is anywhere near as bulletproof as in my extreme hypothetical example. All I'm saying is that anyone who thinks an IM log can be dismissed as hearsay is... well, not thinking far enough ;-)

      (Next up -- when can we expect law enforcement to apply the same treatment to Joe Spammer? Surely sending spam for "HOT BEASTIE WOMEN" to 15-year-old girls is just as bad. You listening, Mr. Spammer in Dallas-Ft.Worth and Michigan?)

  • Of course?? (Score:2, Insightful)

    by dciman ( 106457 )
    I would think this is somewhat clear. Intercepting any type of com. should fall under the same wiretap regulations as voice calls. Often email and instant messenges are treated by end users as being *more* secure than your typical voice conversation. Just because, when you are in a room alone on your computer you tend to feel secure.... often because of the quiet. Of course this is a falwed assumption. I'm sure the NSA is reading everything we all type anyhow ;-)

    But of course that is for "National Security"..... riiiiiiiight But, I am content with letting such security organizations operate somewhat above typical regulations, as long as they don't get too carried away. But, for your typical law enforcment agencies, including the FBI, I think we need to keep a close eye on. And, we should adopt policies that say any type of information intercept should be held to the same standards.
  • This is a case with possibly extremely dangerous outcomes. The scary thing is that a wiretap may only have the possiblility of being picked up, but what makes the email dangerous is the fact that there is a minimum two copies of it still floating on the internet, One on your server (depending on how you set up your server), and one on the opposite server (that you cant even control). While that alone might be scary enough, there are still the possiblities of old emails being stored on tapeback up for recovery purposes and who knows where they will be forwarded to. Further complicating this would be the fact that this wiretap access may be retrived on any of the affected servers with feds trying to pressure anyone to releasing the documents "voluntarily". Hope for the best in this, but prepare for the worst

    ~~~~~~~~~
  • At first I was completely opposed to the police accessing his e-mail without a warrent, ready to liken it to them tapping his phone without permission. Then I read these lines:

    The court also said the wiretapping law did not apply because police did not intercept Proetto's messages as he was sending them, but after the fact.

    Now, the article didn't go into whether or not the police had an "overall warrant" to search through his stuff, but assuming they did, I see nothing wrong with this. If they merely got the e-mails from the 15-year old, the ISP, or his computer, then they'd just need the proper warrants to search. (Not a wiretapping warrant.)
    • Feel free to correct me if I'm wrong, but if she were to just hand over the logs to the police when they ask for them, they don't need a warrant. So she may have just turned the logs over. The real question is whether she only logged her chats after the police asked her to. That (to me) would constitute a wiretap.
      • I think you're right. I wasn't sure whether or not the police took the files from the guy's system. If they went into his house and took computer files (along with whatever else) as evidence, then they don't need a warrant. If the 15 year old girl he was chatting with printed out the chat transcripts and handed it to police, then they don't need a warrant.

        Standard disclaimer: IANAL. This is just my "common sense" talking. Common sense and the law might conflict sometimes.
        • From the article:
          The court also said the wiretapping law did not apply because police did not intercept Proetto's messages as he was sending them, but after the fact.
          The only loophole I can see (once again, IANAL) is that it's possible that she was only logging chats after the police requested it. I could see THAT falling under wiretap laws, but not if she just handed over the logs. Either way, (emotionally-biased opinion on the way) I hope they nail the bugger to the wall. Pedophilia == bad.
          • I feel obliged to play a bit of devils advocate here and point out that a 15 year old hardly falls under "pedophilia", except of course in the strict legal sense (and even then, not in all states) - a 15 year old is (usually) sexually mature, hence, it's not abnormal or un-natural to be attracted to one.

            Statutory rape, emotional maturity, blah, blah, blah all aside - this is not pedophilia. Maybe a bit perverted, but not as much as a few rightous people would like to think.

  • Question (Score:2, Interesting)

    by PowerTroll 5000 ( 524563 )
    Though federal law only requires the consent of one person before a telephone call or Internet communication can be recorded, Pennsylvania and 11 other states require the consent of all parties.

    I wonder if these 12 states consider a defendant giving permission to recording phone calls or releasing IM logs to be a sort of self-incrimination, thus violating the 5th Amendment?

    It's interesting the some state do and do not allow this.

    • Re:Question (Score:4, Insightful)

      by Pedersen ( 46721 ) on Wednesday February 20, 2002 @11:58AM (#3038107) Homepage
      I wonder if these 12 states consider a defendant giving permission to recording phone calls or releasing IM logs to be a sort of self-incrimination, thus violating the 5th Amendment?


      Note that the 5th Amendment only states that you are not required to testify against yourself, not that you are not allowed to do so.


      As such, a defendant giving such permission is simply waving his 5th amendment rights. Which makes the laws make even more sense. After all, if you don't know you're being recorded, aren't you possibly being tricked into testifying against yourself, and thereby being forced to give up your 5th Amendment rights?

  • fry 'em (Score:3, Interesting)

    by Hooya ( 518216 ) on Wednesday February 20, 2002 @11:52AM (#3038068) Homepage
    WTF? sounds like the girl submitted the conversation to the police (smart girl.). + the pedafile solicited sex with a police officer posing as a 15 year old. what wiretap? don't tell me soliciting sex with a 15 year old is free speech either.
    • it is if your 15!
      ;)
    • Actually it is free speech. Constitutionally protected speech even. The solicitation is illegal though in Pennsylvania (moral arguments aside). He'd still be in trouble if he just used hand motions to communicate that he wanted sex from her (the 15 year old). It's not illegal afaik to solicit sex from a policeman pretending to be a 15 year old girl, and depending on how it was done could constitute entrapment; but the two are seperate issues.

      I think the guy might be able to get out of it (plausible denial that the person IMing her was him, plausible denial of knowledge of age, etc) but I think wiretap or illegal s&s does not apply from what excite tells of it...

  • Might sound silly but in the case of the phone it is a switched network by which you have a specific route to the phone you are dialing (okay its not always like that now, but when the laws were created), however with the internet it is packet data that travels openly over a network, if was encrypted then it becomes a private network as you are closing off connections to other people.

    So while its "obvious" its a fairly easy one to describe why its a different situation. Packets go over the public internet, which anyone can packet sniff. Its the different between whispering to your friends and broadcasting it on CNN. Do the police have to get a court order to watch CNN ?
  • Pennsylvania's Superior Court took a different view, ruling that Proetto had consented to
    the recording by the very act of sending e-mail and instant messages.

    "Any reasonably intelligent person, savvy enough to be using the Internet ... would be
    aware that messages are received in a recorded format, by their very nature, and can be
    downloaded or printed," said the court, likening an e-mail message to a message left on a
    telephone answering machine.

    The court also said the wiretapping law did not apply because police did not intercept
    Proetto's messages as he was sending them, but after the fact.

    As is regular mail recieved in a recorded format, which by its very nature can be archieved, photoc\opied, displayed on a (physical) bulliten board, etc... Its not possible to limit the reciepent's \use of the (e)mail, but that doesn't give the government any excuse to be reading it. The permanen\ce of the format used for communication is exactly why more protection is inherently required, *not\* less.
    • It doesn't give the government an excuse to read it, but they didn't intercept or steal it. It was given to them. Everyone here seems to think that when it comes to the "Your Rights" topic, the victims rights go out the window. He was soliciting sex from a minor, she turned him in and provided evidence. Let's not try to get the pedophile off on a technicality here (though I don't think there is one).
    • but that doesn't give the government any excuse to be reading it.

      I think you're missing the point the police are trying to make. You concede that they are analagous to snail mail - the point is that like snail mail or a phone message left on the recipients voice mail. Once they are sent the RECIPIENT is the owner of their copy. And the recipient is perfectly free to give it to the police. They have not searched his records, they did not tap his line and listen to/record conversations that are both private and transient. They were given a document by the recipient that OWNs that document.
  • I cannot believe this a controversial issue. Certainly governmental reading of email conversations is equivalent to the listening of phone conversations. It is protected communication of the citizenry the government is required to obtain a warrant for.

    I dislike conspiracy buffs and most seem to be trolls, but the mere controversy of this issue and the constant flow of laws and regulations to dictate and control technology make me wonder if there is indeed some governmental conspiracy to institute some wacko society to keep intelligence and those knowledgeable of technology at bay, at the pits of social and political hierarchy.
  • That's the real issue here. The prosecution is arguing that, because the transmission is received in a recorded format, that the sender has implicitly consented to the recording of that communication. They are comparing it to a message left on an answering machine.

    This is, to me, a grey area. It is a real-time commuinication, but it is also regularly recorded. The courts should (in my not-a-lawyer opinion) find that real-time communications should be treated under the law the same way as phone calls. Even better would be for legislatures to enact laws making this explicit.
    • [real-time communications should be treated under the law the same way as phone calls]

      So does that mean that when I'm online from my parents' place in Pennsylvania, if I'm IMing with you, I need your explicit permission to hit File, Save As, IMConversation.html? And that's just the Windows 9x client. The three Linux clients I've used, TiK, Gaim, and Everybuddy, have all had conversation logging enabled by DEFAULT. Would that be illegal now?

      I use conversation logging in TiK as a neat little hack. If I leave TiK running on a Unix box with an Away Message up, I can then telnet/SSH/FTP into the box from anywhere on earth to look in the captures director and see if anyone's IMed me. I certainly don't notify people that what they're telling me is being archived, and I don't feel any need to.

      And that's all AIM-related. What about ICQ, where you aren't always in a traditional conversation window. I message you, you get it, you then send me a message back in a different window. But it all goes into your "message history" log.

      And if you email me, how in the name of God can that not be put on a hard drive somewhere?

      My feeling is that when the letters pop up on the screen, you've got something "in writing", which should be treated as such.
    • That's the real issue here. The prosecution is arguing that, because the transmission is received in a recorded format, that the sender has implicitly consented to the recording of that communication. They are comparing it to a message left on an answering machine.

      This is, to me, a grey area. It is a real-time communication, but it is also regularly recorded. The courts should (in my not-a-lawyer opinion) find that real-time communications should be treated under the law the same way as phone calls. Even better would be for legislatures to enact laws making this explicit.

      I'm not so sure. Unlike phones, every IM client comes with a "record" option.
      You don't even have buy a 43-228 [radioshack.com] for $19.99
      On the other hand, IM feels more like talking than writing, so perhaps treating it
      like a spoken conversation is the right thing.

      -- Just because there are shades of gray, it doesn't mean we can't tell black from white.
  • They're not really looking at the suspect's computer, they are looking at files on the girl's computer.
    To say his fourth amendment rights are being violated is a crock. To pull up an e-mail on someone else's computer with permission from the owner of the other computer does not constitute an "unreasonable search". Anyone who sends e-mail should know that once you hit send it is out of your hands.

    Here the fourth amendment, as a reference.

    Amendment IV 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. .

  • Duh? (Score:5, Insightful)

    by Rogerborg ( 306625 ) on Wednesday February 20, 2002 @11:56AM (#3038092) Homepage

    Duh? In what way? To me this looks pretty clear cut: this evidence - in this case - was 100% admissible, because it's not a wiretap. And here's why.

    When making a phone call, you have a reasonable expectation that it is not being recorded. That's why law enforcement needs a wiretap order.

    When sending a snail mail letter, you do not have a reasonable expectation that there will be no record of it after it has been received, nor that the recipient will not give it to law enforcement of their own free will, after they have received it. You have a reasonable expectation that it will not be intercepted in transit, but once it reaches the recipient to which you sent it, it's in their possession, you know it's in their possession, and it's fair game.

    Pop quiz: do emails that you receive:

    • A: Automagically evaporate after you have read them?
    • B: Remain on your machine as long as you want them to?

    Given that you've ever received an email and know the correct answer to this, do you have a reasonable expectation that an email that you have sent will not be used by the recipient as evidence?

    Perhaps Slashdot editors could consider taking a minute to read the article before kneejerking a commentary. I know it's a common lament, but this case is open and shut. The guy sent emails soliciting sex from a minor. The emails that he sent were given by the intended recipient to law enforcement after they were received. There was no wiretap. Perhaps the sender really was dumb enough to expect that there would be no record of his emails after they were received , but that was an unreasonable expectation, given that he was clued enough to send an email.

    It's an interesting case, but it's really not about wiretapping or privacy or the evil feds. It's about a child abuser who was really dumb and got caught. The fact that it involves emails is neither here nor there - he might as well have been sending snail mail letters.

    Are we all quite clear on that now? Please, please, please, read the news story before responding.

    • It is an interesting case, but I think the issue here is not exactly about wiretapping. According to the article:

      Though federal law only requires the consent of one person before a telephone call or Internet communication can be recorded, Pennsylvania and 11 other states require the consent of all parties.

      E-mail falls under Internet communication and thus requires monitoring consent of the 15 year old (or her parents) AND the police officer. Having a reasonable expectation that communication will be recorded is different from consenting to monitoring. It will be interesting to see wether the courts accept this.

        • federal law only requires the consent of one person before a telephone call or Internet communication can be recorded

        Um, OK, but email is de facto recorded. It's (quite literally) practically impossible to remove all recordings of an email that you personally have received. That would be like requiring all recipients of snail mail to shred it unless they have explicit consent to retain it.

        You've got a good point, but I do believe that the court will use the "reasonable expectation" test about the emails. The IM's are another issue. They might lose some sleep over that one.

  • Was I the only one that read the headline as "Penny Arcade [penny-arcade.com] Supreme Court"?
  • "Any reasonably intelligent person, savvy enough to be using the Internet ... would be aware that messages are received in a recorded format, by their very nature, and can be downloaded or printed," said the court, likening an e-mail message to a message left on a telephone answering machine.

    A show of hands please...who here has to log into their answer machine to get messages? What manufacturer makes these password-protected answer machines?

    Judges have no business making these kinds of comparisons when they clearly have never even used the technology to begin with. I think the biggest flaw our legal system faces in the 21st+ century is judges who make grand assumptions about technology, rather than have the honesty to admit they don't know how things work and have an expert brought in to explain it to them.

    If this guy was posting messages on a newsgroup or something...sure...I would find the statment accurate. I, a reasonably intelligent person, savvy enough to be using the Internet would be aware that my messages are being received in a recorded format and and can be downloaded or printed. But for Pete's sake the same is absolutely untrue for e-mail. The very notion that anything I e-mail to someone is available for downloading/printing by anyone but the receipient is a huge privacy violation.

    Judges ought not to be making comments about "reasonably intelligent people" who are "savvy about the Internet" when their analogies demonstrate conclusively that they themselves are neither.

    - JoeShmoe

    .
    • The very notion that anything I e-mail to someone is available for downloading/printing by anyone but the receipient is a huge privacy violation.

      If you'd read the article, you'd notice that these e-mails were given to the authorities by the *intended recipient* which makes your complaint pretty invalid. I think the judge does in fact know what he's talking about here.
    • I don't think you've used an answering machine lately. If you want to access someone else's answering machine without breaking into their home then you'd usually have to call their number and type a secret code (ooooooh... a password!) on your phone before you could listen to their messages.

      I don't agree with the judge's comparison anyway though. ;-)

      • A show of hands please...who here has to log into their answer machine to get messages

      You're missing the point. When you send a message - particularly an email - you have to expect that the intended recipient will have a copy of it.

      • The very notion that anything I e-mail to someone is available for downloading/printing by anyone but the receipient is a huge privacy violation.

      Spot the guy who didn't even bother reading the story. If you bother to read it, you'll find that the email was submitted as evidence by the intended recipient, a 15 year old girl, and the IM's by the intended recipient, a law enforcement agent posing as a minor. At no time did law enforcement make a 3rd party interception or recording. The guy sent the messages. The intended recipients got them. The intended recipient submitted them as evidence. No wiretap. No interception. Go to jail, go directly to jail, do not pass go, do not collect $200.

      Moderators, you might also want to read the story before applying your mod points. This is an important and emotive issue; let's be sure we have the facts before getting all riled up and picking the wrong side.

    • show of hands please...who here has to log into their answer machine to get messages? What manufacturer makes these password-protected answer machines? You could argue that your house key acts like a password, if you have the key you can access the message. If the police want to get access to a tape in an answering machine they could do it two different ways.
      1. Ask someone who has access to the answering machine to give them the tape (i.e. The girl who owns the answering machine)
      2. Get a court order to obtain the tape (Warrent)

      To assume that only the girl would be able to receive the message is absurd. She could give the tape or copies of it to anyone she wished.

    • Actually I think the judges that said that are *quite* intelligent, and *very* in touch with the internet.

      Let me paraphrase the judge's quote:

      "Digital messages, pictures, music, and information in general can be copied perfectly. If you can read it; you can have it. If you see it; you can have it. If you hear it; you can have it. If you have it, then you can do whatever you'd like with it."

      This is computer knowledge, and brought about frequently on slashdot in regard to music encryption schemes and the such. The judge is just saying that the guy has a reasonable expectation of privacy, until it gets to the recipient. A better analogy would be snail-mail. In transit nobody can touch it, but once the person gets the mail they can do whatever they'd like with it: burn it, save it, copy it, or forward it to the police.
    • If the judge isn't aware of the federal Electronic Communications Privacy Act (ECPA), some of the people involved in this case are incompetent. That federal explicitly gives email communications strong privacy protection, and an explicit on-point law trumps an analogy every time. (Unless you're talking about an appeals court overturning the law on constitutional grounds, but we aren't.)

      I don't think IM was covered by the ECPA - it wasn't common in the early 90s - but it may still be on-point.

      As for logging into an answering machine, he's undoubtably refering to the access codes used for remote access. However it's again a lame analogy since the default access codes are well-known and often either unchanged or impossible to change. (If you're curious, most default passwords are straight sequences on the keypad, e.g., 789.)
  • The court also said the wiretapping law did not apply because police did not intercept Proetto's messages as he was sending them, but after the fact.

    It seems that the defendent's case is extremely weak. Do police need a wiretap warrant to listen to a message left on an answering machine? No! Do police need a search warrant on the sender to look at a postal letter sent to a victim? No!

    This case has nothing to do with Internet privacy, wiretapping laws!

    • Re:Misleading headline (Score:3, Interesting)

      by arkanes ( 521690 )
      It has EVERYTHING to do with Internet privacy/wiretapping laws - because this decision will affect whether we legally consider Internet communcations to be telecommunications (and thus covered by wiretap laws) or physical communications (and thus not).

      In both cases, existing law provides for signifigant protection on data in transit, so all the people blathering about how since you can snoop any packets coming over your router it's the same as broadcasting on CNN might want to perk up as well. (BTW, there's a large difference between scanning headers and whatnot with automated scrips to route packets and actually having a live human or heuristic algorithm to store/redirect them based on content)

      • It has nothing to do with wiretapping laws. Let me repeat.

        THERE IS NO WIRETAPPING OF ANY KIND INVOLVED IN THIS CASE.

        The defendent is arguing that since the e-mails and IMs were recorded by the intended recipient without his consent(necessary by PA Law), they are inadmissable.

        The prosecution argued (and the lower courts agreed) that the defendent had no expectation that the e-mail messages and IMs would *not* be recorded by the intended recipient because of the very nature of the two mediums.

        That is the issue at hand. The police weren't sniffing packets or intercepting e-mails. The intended recipient of the e-mails and IMs voluntarily turned them over to the police. If he had snail-mailed the solicitations to the girl, he wouldn't even be bothering appealing.
  • Something along the lines of "sending unencrypted email on the internet is the equivalent of sending a postcard in USPS" right?

    Or at least, that's about right from a technical perspective. Legal perspective is of course another matter.

    Intercepting in transit generally requires a wiretap warrant. Getting records after the fact requires a search warrant, but not wiretap. Answering machine messages are fair game with a simple search warrant, and that's about what email logs and icq logs are... answering machine messages.

    You probably don't even get into issues of "one party notification" or "two party notification" for recording, because it is assumed by the method (email and icq) that both parties are aware of logging/record keeping, just like with answering machine recordings.
  • the part which they lost.

    When the SS seized the illuminati bbs machine, they took everything on that disk and read it all, including all the email sitting on it (i believe the bbs had a fidonet connection, giving it some limited degree of network email), some of which hadn't actually been read by the recipients (and in the end, never was because the BBS disk was never totally restored to the new system).

    Seems the court at that time decided that reading email that had already been delivered to the target machine was not "intercepting the email" even if the intendent recipient hadn't read it yet, therefore wiretapping rules didn't apply.

    yes, it would be nice if the gov or the courts acknowledged email as a private form of conversation/transaction, where its rights are with the sender and recipient and not with the site hosting the machine its sitting on, but I don't see that happening anytime soon...
    • The problem with considering e-mail to bve private communication is the fact it is not very private or discrete. E-mailing someone is sort of like standing in the middle of a crowd and yelling to them hoping nobody else pays attention to what you just said to them. Technically unencrypted e-mail has no expectation of privacy because it is sent in the open as it were and anyone interested could read it. An ISP has to comply with court orders to turn over e-mail records if they keep them because they are just giving information that was sent in the clear anyhow. If you sent sensitive information (say a bank account number) on a postcard and then someone used that information to remove all the money from the account the court would laugh you out of the building for being so stupid as to assume a message sent out in the open had a reasonable expectation of privacy. Ergo, always encrypt your damn e-mail!

  • "... likening an e-mail message to a message left on a telephone answering machine."

    It may be only my opinion, but there's a huge difference between the use of a delivered email and the monitoring of every communication from the computer.

    It would okay for a written letter, sent by an accused party to a victim, to be used as evidence with no warrant (AFAIK) - if the letter was submitted after delivery (EG: submitted by the victim). There's a big difference between this and checking every letter that the accused mails. As the judge implies: monitoring a telephone conversation is different to retrieving a recorded message on an answerphone. One is monitoring or tapping of [all] communications, and the other is collection of a single item.

    IMO the same distinction should apply to monitoring outgoing email from a person's computer or account: a single email that's already delivered into someone else's inbox shouldn't require a surviellance warrant. Monitoring everything a person sends is akin to a telephone wiretap, but this isn't the case in the story given.

    As another thought: is there a law/precedent governing ownership of such communications? I would suspect that, upon delivery of a paper letter, the ownership of the letter & its content transfers to the recipient. Wouldn't this also apply to email? Once the email is delivered, the recipient can use it as they wish unless other laws (copyright, etc) apply to the content.

  • In case nobody has bothered to figure this one out, wiretaps and e-mail are both covered under this federal law. Give it a read sometime.
  • Sorry Taco, but for purposes of law there is no "duh" here. There are fundamental differences between messages sent over the Internet and telephone conversations. Issues regarding wiretapping (and privacy in general when it comes to police surveillance) are based on standards of "reasonable expectations of privacy". When you pick up the phone and make a call, you have the reasonable expectation that no one can intercept it (CIA spook theories notwithstanding) because it runs over a heavily-regulated essentially-private network. For that reason, the police must get the approval of a court before they can violate that expectation. But unencrypted transmissions over a public network via an unregulated service like AIM? I think the differences are obvious.

    There is a fundamental social question here, and the reason Taco says "duh" is because his opinion is squarely on one side of the issue. It is the balance of individual privacy and public safety. Most of the Slashdot readership probably figures that the principle at stake here is official surveillance of purportedly-private communication, and feels that universaly shouldn't be possible without court supervision. On the other hand though is a well-established legal standard which could reasonably be interpreted to allow the practice at issue. It comes down to whether widespread public ignorance about insecurity of Internet transmissions should be construed to create that "reasonable expectation of privacy". I don't think it should, but that's for the courts and legislature to decide, isn't it?

  • define the problem... (Score:3, Interesting)

    by supernova87a ( 532540 ) <kepler1@@@hotmail...com> on Wednesday February 20, 2002 @12:15PM (#3038207)
    Upon reading this thread further, I've also changed my mind about the wiretapping definition. Wiretapping, it seems to me, is something that records a conversation neither party expected to keep a record of, or give others easy access to. Voice conversations clearly fall into this area, because as soon as they are spoken, they're understood to evaporate. But most people know that email is not priviliged communication (as shown by employers monitoring/reading employees' emails, and text of emails being subpoenaed for various purposes).

    Many people here seem to be surprised that whether this is wiretapping is even a question -- as if it should obviously be classified as wiretapping. But if we take the approach that whatever you do on the internet may be public information (no guarantee of privacy), then reading someone else's public messages might not be infringing on privacy -- there was no expectation of it to begin with! Just because someone hears or sees you do something, doesn't mean that your privacy was invaded!

    However, I am interested in seeing what the courts have to say about this, as my interpretation is only a casual one. As people come to expect more privacy from the internet, will the law extend the privacy people expect? Are encrypted email messages entitled to special protection? I wonder what instant messages between cellphones will be classified as? Will these be priviliged "wire-tappable" communications?

  • The story is missing some details (Score:3, Interesting)

    by Sabalon ( 1684 ) on Wednesday February 20, 2002 @12:17PM (#3038230)
    The story has more holes in it than most hollywood plots of late.

    It sounds like the girl went to the police about it, then the police posed as a 15 year old to catch the guy.

    I don't see where any wiretapping or anything similar went on. Obviously the girl went to police after the fact, so they couldn't tap into that. Perhaps she brought a printout of the conversation - it doesn't say. And then when the police posed as the 15 year old, they caught him in the act.

    About the closest is says is that the police looking at the messages should be subject to wiretap procedures - however, I'm guessing that the girl took the messages to the police. Nothing was recorded by the police - this is akin to the witness saying the defendant said such and such in a phone conversation with me, but with photographic memory.

    I could see his complaint if the police had intercepted the messages in real-time by tapping into the line of communication (a sniffer at the ISP or something like that).

    I suppose he could have claimed the girl modified the content of the messages in the printout if one existed, but since he got caught red-handed...oh well.

  • Fascinating Questions (Score:5, Interesting)

    by werdna ( 39029 ) on Wednesday February 20, 2002 @12:34PM (#3038320) Journal
    The legal status of review and interception of unencrypted communications is a deep and fascinating inquiry. Virtually all these questions come down to the simple-sounding issue of whether the communicating parties had a "reasonable expectation of privacy."

    The fundamental difference between telephone lines and internet communications derives from its "party line" nature -- interception isn't necessarily interception per se. Indeed, e-mail is in many respects much more like a postcard than a sealed envelope, and it is well-settled that postcard communications are NOT "private," although entering land to open a mailbox to see it WOULD be a violation.

    But such analogies are fruitless, for they are always flawed. This is neither a postcard nor a sealed envelope nor a proprietary switching network -- it is an internet communication. There are separate laws that govern conduct on such networks, and these laws are different from general wiretap laws.

    Lawyers have been battling over the question whether the use of unencrypted e-mail for attorney/client discussions constitutes breach of attorney/client privilege or the attorney's obligation to maintain a client's confidentiality. Unsurprisingly, the issue comes down to the same basic question -- reasonableness of the conduct and a reasonable expectation of privacy.

    The vast majority of ethics rulings (non-binding administrative opionions published by state bars and the ABA) seem to treat e-mail the same as telephone communications, because there exist laws, in particular the ECPA and the CFAA that criminalize interception of transmissions. But those opinions may not be the law -- and certainly they were based upon a severely flawed (that is, oversimplified) understanding of both the relevant laws (which do not apply to many third parties, such as ISPs and the police in particular) and the technology itself.

    This case may hit on those questions as they necessarily address "reasonable expectation of privacy." It will be fun to watch. Hopefully something useful will result.
  • The one thing that is real sketchy about this case is that it involves a pedophile. I know judges are supposed to be impartial but I wouldn't be surprised if some anger towards the man in question is reflected in the decision about wiretaps. I guess it could be worse, the pedophile could of been a "terrorist."
  • IANAL, but with the various IM clients having some serious security issues lately - not quite as bad as some other proggies out there, but in Joe six-pack's hands about the same level of Outlook Express - you would think the defense would be "I did not do it" rather than "you can't listen in".

    It is way too easy to have something forged, or worse, proxied through your account compared to how people wet themselves over a one in ten billion chance a DNA match may be invalid. Assuming Innocence, of course, you would figure there is a reasonable doubt option....

  • Different (earlier) coverage, more explanation (Score:4, Informative)

    by John Murdoch ( 102085 ) on Wednesday February 20, 2002 @02:01PM (#3038985) Homepage Journal

    Hi!

    The AP wire article that Excite quotes was written by a reporter in Philadelphia, presumably after reading this story [mcall.com] which ran in the Allentown Morning Call [mcall.com] five days earlier. The AP writer makes a couple of mistakes, and misses a significant point--a point that is made well in the Morning Call piece.

    • Proetto (the perp) is not in danger of going to prison over this. He has already been convicted, and is nearing the end of a six-months probation sentence.
    • Proetto is bringing this action to avoid getting labeled as a "sex offender"--because sex-offender rules in most states have all kinds of onerous restrictions.
    • Proetto lives in Whitehall Township, which is in Lehigh County, but works (or worked--whether he's still employed as a policeman appears to be in question) for the Colonial Regional police force in Nazareth--which is in Northampton County.

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