Government Has a Right to Read Your Email? 382
gone.fishing writes to tell us that a new lawsuit is challenging the government's right to read your e-mail. The Minneapolis Star-Tribune is reporting that a seller of "natural male enhancement" products sued after a fraud indictment based on evidence gleaned from his electronic mail. Federal prosecutors say they don't need a search warrant to read your e-mail messages if those messages happen to be stored in someone else's computer."
Hearsay Evidence? (Score:3, Informative)
According to the Federal Search and Seizure Manual written by the Department of Justice:
Even if found by coincidence the "natural male enhancement" e-mails would not be admissible in a court of law, they would be considered hearsay.
One word.. (Score:2, Informative)
Re:What part of (Score:5, Informative)
An analogy if you will. Suppose you and I commit a crime, the evidence of which is stashed at your house. The police come busting down your door without a warrant and find said evidence. In this case, your right to privacy has been violated and the evidence found cannot be used against you. However, this evidence can still be used against me. Why? Because I had no expectation of privacy IN YOUR HOUSE. As far as the law is concerned, the evidence found against me is as legitimate as if you had turned it in yourself.
Back to the email thing, the minute you send an email to an outside party, you voluntarily concede your expectation of privacy as YOU were the one who freely divulged whatever information was in that email.
Re:Hearsay Evidence? (Score:3, Informative)
The government's argument is that no warrant is necessary since your documents are stored in the open. The ISPs hand over the data willingly.
Thus, all that is necessary is to maintain the chain of evidence such that it is clear who wrote it, who recieved it, and who touched it between sending and its appearance in court.
-GiH
Encryption (Score:3, Informative)
The gov't can read my e-mail all they want. At least, they can try to. http://enigmail.mozdev.org/ [mozdev.org]
Re:What part of (Score:5, Informative)
That makes no sense, however. I don't own the phone network once it leaves my house (more precisely, the NID), but I have a right to privacy as defined by quite a bit of legislation.
That right there is the key. There is quite a bit of legislation protecting phone conversations. There isn't similar legislation in the case of emails.
In addition to that, the police do not need a warrant if they have permission from the owner. For example, if you get pulled over by the police, they don't need a warrant to search your car if they ask you for permission and you say "yes". Similarly, if they ask Verizon for the emails in a user's account, and Verizon gives it to them, it is perfectly legal without a warrant. The theory is that if the owner does not object to the search/seizure, then it must not be unreasonable.
Re:What moron modded you "insightful"? (Score:3, Informative)
And that would be completely correct if it wasn't for a set of special laws protecting the US Post Office- that same set of laws has NOT been passed for the Internet. If you want them- you need to write your congress critter.
Re:What part of (Score:3, Informative)
If the government is getting it off of one of these privately owned servers, then either the owner is giving it to them, or they had better have a search warrant for it.
Re:What part of (Score:3, Informative)
They could still legally give your emails to the police, but then they would be in breach of contract. At that point, you would have to file a civil case against them. The emails would still be considered admissible evidence in a criminal case against you.
Re:How I Learned to Stop Worrying... (Score:4, Informative)
Hardly New (Score:3, Informative)
As a matter of black letter law, the 4th Amendment does not protect "what a person knowingly reveals to the public." (Katz) Previous cases have held that your garbage, your bank records, and even phone records may be obtained without a warrant, provided that they are obtained from the third parties with which you are dealing and not your home.
There is federal statutory law on email (though I don't recall the precise citation) that treats email as a hybrid between telephone conversations and documents. To read your email in real-time as it comes in, the government requires a warrant. If you leave it on your ISP's mail server for longer than some period of time (not sure how long, but it's something longer than an hour and less than a month), then the email is treated as a document and can be obtained like any other record.
Normally a warrant to search a house, tap a phone or intercept email requires probable cause. However, this requirement is different if "a substantial purpose" of the investigation is foreign intelligence surveillance. In that case the warrant can be obtained with something less than probable cause under FISA as modified by USA Patriot Act (though there are still pretty stringent requirements; the gov doesn't get carte blanc to snoop on anybody)
Long story short, if you don't want it read, don't leave it on somebody else's server and don't do anything that would convince a judge that you pose a threat to the country.
Re:Difference between phone & email (Score:1, Informative)
If you really don't want the government to know, you have many options
Re:Email should be protected. (Score:4, Informative)
It was protected as well. But it wasn't in his home, it was in the homes of the people he sent it to. He's claiming not that the government shouldn't be able to search his mail, but that the government shouldn't be able to search the mail of the people filing complaints about him even if they give permission for the search. In short, he's claiming that mail in someone else's mailbox belongs to him and he can control access to it. Which is wrong.
Laws need to be updated (Score:4, Informative)
But the one thing that has never changed since the dawn of written communication is this: If you don't want something read, then don't write it down. Especially if you're laundering money from the insecure and poorly-endowed... because that's just wrong!
Re:Difference between phone & email (Score:2, Informative)
Re:What part of (Score:1, Informative)
Although many folks like to think of email as the electronic equivalent of the sealed envelope snail mail, it really is not.
Email is exactly the equivalent of a postcard in the snail mail system. Anyone, anywhere, along it's path from sender to receiver, can "turn it over" and read what is written on it.
If someone really wants the sealed envelope method of mail, they need to use gpg to encrypt the email body so that only the recipient can read it.
A classic "standing" problem... (Score:3, Informative)
Is it a "search" as to you under the 4th amendment if the government reads your e-mail off the server it's stored on?
If it is a 4th amendment search, the government needs a search warrant or some "reasonable" excuse to make the search legal. If it's a search and it's not "reasonable," it's a Constitutional violation, and the evidence would have to be excluded under the judge-made "exclusionary rule." But there's the "as to you" part, as well. The courts won't let you assert someone else's 4th amendment rights; if they illegally kick in Joe's door down the street and find a bundle of dope with your name, address, and social security number printed on it, the government can't use it against Joe, but well, you're shit out of luck. Usually.
Once upon a time the courts had a fairly elaborate "standing" analysis, but ever since 60s when the 4th amendment stopped meaning what it says and started applying to "a socially reasonable expectation of privacy," the analysis is a little more complicated. Going back to the example above: would you have an expectation of privacy that society would find reasonable in keeping your drugs in Joe's house? The courts would say no-- first of all, it's dope; and second, you handed it over to a third person; for all you know, Joe could take your dope and run it straight to the police.
But the Courts have made it more complicated. If you're spending the night at Joe's house, then you, as an overnight guest, have a "socially reasonable" expectation of privacy. But if you're just there for a drug deal, you don't. The question in this case boils down to: do you have an expectation of privacy, that society considers reasonable, in your e-mail when it's stored on a public server?
There's really two ways you can go about answering this question: the first is what I guess you'd call an analyticial analysis: by storing your e-mail on a server, how easy is it for someone, anyone else to read it? How often does that happen? The second would be a values analysis: what do people use e-mail for? How private is it? How important is it to keep the government from reading your e-mail? Etc.
But you'll have to make up your own minds as to this question. I think the "reasonable expectation of privacy" analysis is bunk, and that the 4th amendment was never intended to protect mail or e-mail. But then I'm something of a strict constructionist myself.
I don't believe the emails in question were spam (Score:3, Informative)
similar legislation and ownership (Score:3, Informative)
Notice that both telephone AND email communications (specifically noted for this discussion is definition #17) are listed. Most of Chapter 119 have them used together, meaning that they do have "similar legislation".
Generally, an owner is defined as the only person that can (legally) willfully give away something. Here, this is specified in (3)(b)(ii) [cornell.edu]: "with the lawful consent of the originator or any addressee or intended recipient of such communication." Nobody else can do that: so the originator, addressee or recipient are the owners.
A custodian can usually be used to bypass directly involving the owner, usually for practical reasons. Using your car analogy, the owner is not necessarily in the car (could be a relative, rental company or employer) and the driver can still consent to a warrant-less search.
But, in this case, the ISP is treated as sort of a restricted custodian of the data: if they unintentionally obtain evidence of a crime, they can report it; if they are compelled to give up the data (such as a warrant); etc. But they can't just give it away.
And finally, IANAL.