Forgot your password?
typodupeerror
Privacy Your Rights Online

Government Has a Right to Read Your Email? 382

Posted by ScuttleMonkey
from the no-peeking dept.
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."
This discussion has been archived. No new comments can be posted.

Government Has a Right to Read Your Email?

Comments Filter:
  • What part of (Score:5, Insightful)

    by Marxist Hacker 42 (638312) * <seebert42@gmail.com> on Wednesday December 20, 2006 @03:47PM (#17316240) Homepage Journal
    No Reasonable Expectation of Privacy in the Public Domain don't you understand?

    Like it or not, the Internet was built by the Federal Government- and it very much is the public domain. Any message sent across it unencrypted is just as much fair game for prosecutuion as taking a picture of you mooning other cars on the freeway.
    • by AcidLacedPenguiN (835552) on Wednesday December 20, 2006 @03:53PM (#17316326)
      Any message sent across it unencrypted is just as much fair game for prosecutuion as taking a picture of you mooning other cars on the freeway.
      You mean they can get me for that??
    • Re:What part of (Score:5, Insightful)

      by Mr. Underbridge (666784) on Wednesday December 20, 2006 @03:53PM (#17316328)

      Like it or not, the Internet was built by the Federal Government- and it very much is the public domain. Any message sent across it unencrypted is just as much fair game for prosecutuion as taking a picture of you mooning other cars on the freeway.

      That's not the argument they're making. They're arguing that since you don't own the computer the message is stored on, you have no right to privacy.

      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.

      Like it or not, the Internet was built by the Federal Government- and it very much is the public domain

      Don't know where to start with this one. First, when we talk about "public domain," we're talking copyrightable works. The internet isn't copyrightable. Second, the government doesn't own the individual links in the internet backbone.

      In short, I'm having a hard time seeing why an unsecured communication between two people should be protected when it's a phone conversation taking place over, say, Verizon-owned fiber, but not if it's an email saved on a Verizon-owned hard drive.

      • Re:What part of (Score:5, Insightful)

        by Marxist Hacker 42 (638312) * <seebert42@gmail.com> on Wednesday December 20, 2006 @04:05PM (#17316522) Homepage Journal
        Different public domain. When you're talking privacy laws, the Internet is more like FedEx, UPS, or your local city park than it is like a phone line or the highly protected US Mail.
      • Re:What part of (Score:5, Informative)

        by grylnsmn (460178) on Wednesday December 20, 2006 @04:15PM (#17316688)
        That's not the argument they're making. They're arguing that since you don't own the computer the message is stored on, you have no right to privacy.

        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 part of (Score:2, Interesting)

          by TheUnknown (90519) on Wednesday December 20, 2006 @04:21PM (#17316770)
          I agree with your post but there's a small detail I want to correct. In your example, if you are a customer of Verizon, they might not be able to legally give your emails to the police without a warrant. That depends on the contract they have with you (most likely the TOS). But it is likely the TOS does not include such protections for you.
          • Re:What part of (Score:3, Informative)

            by grylnsmn (460178) on Wednesday December 20, 2006 @04:24PM (#17316808)
            I agree with your post but there's a small detail I want to correct. In your example, if you are a customer of Verizon, they might not be able to legally give your emails to the police without a warrant. That depends on the contract they have with you (most likely the TOS). But it is likely the TOS does not include such protections for you.

            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.
        • And I would argue (Score:3, Insightful)

          by Sycraft-fu (314770) on Wednesday December 20, 2006 @05:04PM (#17317412)
          That e-mail doesn't really need the same protections. The thing is with e-mail, or indeed with any computer based communications, a solution exists: end to end encryption. When there's something you don't want someone to see, encrypt it at the sending computer and decrypt it on the receiving computer. Trust nothing in the middle. I basically assume that anything I send in cleartext my ISP can read if they feel like. Will they? No probably not, but they can and so I don't send stuff in the clear that I would mind if they saw. If it needs protecting, it's encrypted. For example I never access any system at work over an unencrypted link.

          I'm not sure I'd want laws protecting it since it would likely include sysadmins as well as the government. It'd be a major problem at work if I couldn't access someone's e-mail. There are numerous occasions when a problem requires us to get in to someone else's e-mail box. It's all legal, the systems are owned by the university and we are the designated support. However if there were a privacy law saying we couldn't, that'd be problems. Or hell, imagine on a personal level. You run a little server that some friends have accounts on, including e-mail. Suppose it was similar to postal mail (federal felony) for messing with it. You'd want a situation where cating the wrong file could be a felony?

          As I said, I think the answer lies in the technology. Since it is easy to use end-to-end encryption, it should be incumbent on the user to do that when the data is something that they don't want a third party to see.
          • by xappax (876447) on Wednesday December 20, 2006 @05:44PM (#17318110)
            Since it is easy to use end-to-end encryption, it should be incumbent on the user

            If it was really easy to use end-to-end encryption, that might be a reasonable expectation. But it's not really easy. The proof is that almost nobody encrypts their emails today, but if you told them that strangers were reading their emails, they'd be unhappy about it.

            Compare the email situation with many other security precedents. There are phone-tap detecting devices out there that could be used to prevent eavesdropping on phone calls. It wouldn't be too hard to phone users to employ these, but there's also a law which says you can't tap people's phones (at least there used to be!). It's reasonable to expect you to lock your door, but there's also a law which says you can't trespass in someone's home, even if they don't have a lock. It's a good idea to learn self defense and carry a weapon if you're going to an area where you might be accosted, but there's also a law which says people can't attack you.

            Personally, I don't trust the government to protect any of the rights they supposedly guarantee me, but that doesn't mean that they shouldn't guarantee them. At least with a legal guarantee I have some kind of recourse, and there's a deterrent for the law-abiding people or officials who might otherwise try to snoop on me.

            I agree that we need easier and more powerful privacy technology, but it'd be awfully nice if I didn't have to defend my privacy by force all the time.
        • by Tired_Blood (582679) on Wednesday December 20, 2006 @08:09PM (#17319958)
          That's not the argument they're making. They're arguing that since you don't own the computer the message is stored on, you have no right to privacy.
          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.
          Please read this reference [cornell.edu]. Those definitions apply to "CHAPTER 119--WIRE AND ELECTRONIC COMMUNICATIONS INTERCEPTION AND INTERCEPTION OF ORAL COMMUNICATIONS". (sorry for the ALL CAPS, just copy/pasted the title).

          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".

          In addition to that, the police do not need a warrant if they have permission from the owner.
          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.
      • by WebCowboy (196209) on Wednesday December 20, 2006 @06:10PM (#17318542)
        They're arguing that since you don't own the computer the message is stored on, you have no right to privacy. That makes no sense,

        If you confess to a murder on the back of a postcard and email it to your brother, and your brother goes to the police with said postcard, or even if the mailman sees it and goes to the police before you brother even reads it, there is nothing stopping the police from charging you with murder. If the police find YOUR bloody gloves in your neighbours' yard the evidence is admissable if the neighbours willingly allowed the search or the police had a warrant to search their premesis.

        Don't know where to start with this one. First, when we talk about "public domain," we're talking copyrightable works. The internet isn't copyrightable. Second, the government doesn't own the individual links in the internet backbone.

        How about starting here: Search warrants are based upon the location not on the owner or originator of the evidence, so whatever copyright or ownership issues you have really do not matter. If you leave a used condom in a public park after having relations with a prostitute that later turns up dead, should that evidence be inadmissible or require some special warrant before it is examined? Is it an unjustifiable "invasion of privacy" because they can find out about your sex life? OF COURSE NOT! If you are having sex with a prostitute in a public place and don't umm...clean up after yourself, or if you confess on the back of a postcard and send it outside your private domain you cannot expect to be afforded protection of privacy.

        Hell, chances are your every move is being recorded as you do your Christmas shopping, and pretty much everywhere you walk on the streets of London in public view...and you expect that sending an UNENCRYPTED transmission through a PUBLIC network to an OUTSIDE computer--without the permission of the recipient I might add--should be protected under some sort of right to privacy? What makes email so much more special than a message on a postcard, or walking down the street with a bullhorn, or skywriting, or beating the sh!t out of Rodney King on a public street whilst being videotaped by a concerned observer behind a bush?

        I'm having a hard time seeing why an unsecured communication between two people should be protected when it's a phone conversation taking place over, say, Verizon-owned fiber, but not if it's an email saved on a Verizon-owned hard drive.

        You're having a hard time because they AREN'T THE SAME THING. If law enforcement monitored a telephone conversation--or an instant message conversation, or perhaps the packets of data in and out of your PC, in real time, unbeknownst to EITHER party involved in the exchange, then yes, that would be wiretapping and it would require a warrant. If you are a stalker and leave a dirty phone message on some lady's answering machine, and the lady freaks out and brings in the message to the police, then there is no need for a warrant. I think that when some dork mass mails me some penis enlargement advertisement that it is the same as the stalker leaving dirty messages on an answering machine--the only difference is the media.
    • by FatSean (18753) on Wednesday December 20, 2006 @03:57PM (#17316386) Homepage Journal
      I do believe the government can jail you indefinately if you won't turn over the keys. Hopefully they can't declare you an Enemy Combatant who can be dissapeared forever...but I'm sure Lil'Bush and Company are trying their darndest!
    • Re:What part of (Score:5, Informative)

      by mattmacf (901678) <mattmacf@optonline.COMMAnet minus punct> on Wednesday December 20, 2006 @03:58PM (#17316402) Homepage
      This has nothing to do with Public Domain and everything to do with WHO has the expectation of privacy.

      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:What part of (Score:4, Interesting)

        by vertinox (846076) on Wednesday December 20, 2006 @04:28PM (#17316870)
        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?

        IANAL, but something about this tells me that a decent lawyer could find something to get this evidence dismissed against both parties due to improper police handling of evidence.

        The better analogy would be that you rent out storage space at the local long term storage places and store your evidence there.

        The police come and ask the storage space owner to search your space. Your a customer of his, but chances are the storage owner doesn't care enough about you to demand a warrant so it is a moot point whether they have it or not and grants them permission.

        However, the key question is here does that rented space count as requiring a warrant since it is indirectly leased to you.

        For some reason (someone correct me if I'm wrong about this) but as far as I know search warrants are still required for apartments for the residents even if the landlord agrees and gives the police a key to get in.

        This is one of the reasons Landlords must give 24 hour notice before they enter the apartment etc.

        The key question here if your email space on the server is considered "lease property" and technically owned by the persons paying for the space.
    • by manifoldronin (827401) on Wednesday December 20, 2006 @03:58PM (#17316410)
      Any message sent across it unencrypted is just as much fair game for prosecutuion as taking a picture of you mooning other cars on the freeway.
      No, reading a server log entry indicating I sent you an email would be like taking a picture of you mooning other cars on the freeway.
    • by mmell (832646) <mike@the-mells.com> on Wednesday December 20, 2006 @04:05PM (#17316520) Homepage
      Your assertion is not unlike suggesting that I have no expectation of privacy in postal mail because for a length of time it was in the posession of a Federal agency, the US Post Office.
    • Re:What part of (Score:3, Informative)

      by Qzukk (229616) on Wednesday December 20, 2006 @04:19PM (#17316746) Journal
      It's not the "public" domain anyway, it's in the possession of Earthlink, AT&T, or whoever owns whatever particular machine it happens to be on at the time.

      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.
      • by Marxist Hacker 42 (638312) * <seebert42@gmail.com> on Wednesday December 20, 2006 @04:24PM (#17316810) Homepage Journal
        Thank you for the first INTELIGENT post that actually pokes a hole in my argument. You're completely correct- to a certain extent. But since these are corporate entities rather than private individuals, they often play by a different set of rules- if it isn't forbidden by a policy in their charter or by your contract with them, you've got no reasonable expectation that they're not just going to hand it over to whomever asks for it.
  • Right to read (Score:5, Insightful)

    by laffer1 (701823) <luke@@@foolishgames...com> on Wednesday December 20, 2006 @03:47PM (#17316242) Homepage Journal
    This is more of a question rather than comment. Is it legal for them to read snail mail at the post office? Its stored there until you get it delivered. If no, then this lawsuit has a point.
    • Re:Right to read (Score:5, Interesting)

      by Marxist Hacker 42 (638312) * <seebert42@gmail.com> on Wednesday December 20, 2006 @03:49PM (#17316264) Homepage Journal
      The difference being that the US Mail has laws protecting it's privacy. FedEx, UPS, and your local mailserver simply don't. It's perfectly legal for them to snoop on a FedEx overnight envelope while it's stored at a FedEx warehouse or when it hits the central depository in Chicago.
      • Re:Right to read (Score:4, Interesting)

        by balsy2001 (941953) on Wednesday December 20, 2006 @04:25PM (#17316824)
        I think this is only if Fedex lets them. My guess is that Fedex etal will say you can't haveinformation on our clients without a warrant/subpoena. Otherwise why not just station a lay enforcement officer at all FEdex depot to search everything for potential criminal activity. On a kind of related note, several of my friends used to work at a UPS center during college and they said their instructions from the company in the event of accidental opening was to put it back in the box and ignore it even if it was weed or something.
        • by Marxist Hacker 42 (638312) * <seebert42@gmail.com> on Wednesday December 20, 2006 @04:42PM (#17317050) Homepage Journal
          I think this is only if Fedex lets them.

          True.

          My guess is that Fedex etal will say you can't haveinformation on our clients without a warrant/subpoena.

          More likely, like most businesses, they'll take the easy way out unless forced to by contract law. I haven't examined the shipper contract on a fedex package recently- does it now include such a guarantee?

          Otherwise why not just station a lay enforcement officer at all FEdex depot to search everything for potential criminal activity. On a kind of related note, several of my friends used to work at a UPS center during college and they said their instructions from the company in the event of accidental opening was to put it back in the box and ignore it even if it was weed or something.

          Interesting. I wonder what the UPS contract says? Or maybe they simply don't want the issue coming up in case the government does just that: station a law enforcement officer at their depots.....
    • What if... (Score:2, Insightful)

      by BenSchuarmer (922752) on Wednesday December 20, 2006 @03:55PM (#17316356)

      What if the mail in question is a post card?

      It seems to me, that anyone who wants to keep their mail private, should put it in an appropriate container (aka encryption).

    • by timeOday (582209) on Wednesday December 20, 2006 @04:00PM (#17316422)
      Is it legal for them to read snail mail at the post office?
      Are you joking? I've woken up in the Soviet Union. No, the police cannot steam open your mail without a warrant. No, they cannot tap your phone without a warrant. (Until recently of course). Why we have given up on these principles and accepted universal wiretapping for newer technologies, I cannot imagine.
      • by Kelson (129150) * on Wednesday December 20, 2006 @04:07PM (#17316552) Homepage Journal
        I've woken up in the Soviet Union. No, the police cannot steam open your mail without a warrant. No, they cannot tap your phone without a warrant. (Until recently of course). Why we have given up on these principles and accepted universal wiretapping for newer technologies, I cannot imagine.

        Kind of makes you wonder who really won the Cold War, doesn't it?

        We've obviously been doing better than Russia and most or all of the other former Soviet republics, and capitalism clearly triumphed over communism, but when it comes to personal freedoms, we're doing to ourselves what we feared the Soviets would do to us. Did we really come out on top?

        • by daveschroeder (516195) * on Wednesday December 20, 2006 @04:23PM (#17316794)
          We've obviously been doing better than Russia and most or all of the other former Soviet republics, and capitalism clearly triumphed over communism, but when it comes to personal freedoms, we're doing to ourselves what we feared the Soviets would do to us. Did we really come out on top?

          Considering this law is the Stored Communications Act of 1986, and the Cold War wasn't even over yet then, yes, one does wonder.

          ...

          Seriously, I know most people reading this will think this is some "new" law. No, what's "new" is that the already existing law is being *challenged*, or at least the interpretation of it.

          So that's a good thing, right?

          Or is it better to make it look like a 20-year old law represents some "slippery slope" that we're slipping downward into?

        • by JavaLord (680960) on Wednesday December 20, 2006 @04:23PM (#17316804) Journal
          We've obviously been doing better than Russia and most or all of the other former Soviet republics, and capitalism clearly triumphed over communism, but when it comes to personal freedoms, we're doing to ourselves what we feared the Soviets would do to us. Did we really come out on top?

          Maybe you haven't been paying attention to what goes on in Russia lately, but you should look into the stories of Alexander Litvinenko [wikipedia.org], Anna Politkovskaya [wikipedia.org], Paul Klebnikov [wikipedia.org], Artyom Borovik [wikipedia.org] and a few others.

          You don't see things like that happening over here. When Keith Oberman is gunned down for criticizing the government, then you can start comparing America to modern day Russia. Americans today don't face anywhere near the type of oppression that people did in Soviet Russia. While outlandish statements like that may earn you mod points here on slashdot, or replies on other fourms, they don't add to meaningful discussion.

          A better question in my opinion would be, what would our founding fathers think of such government actions if they were alive today?
        • by meta-monkey (321000) on Wednesday December 20, 2006 @04:33PM (#17316926) Journal
          Oh, please. How's life in the gulag there, comrade? Oh, what's that? The FBI didn't bust down your door for not liking George W. Bush? Imagine that!

          You might be overreacting just a touch. Godwin's Law should cover mentioning the Soviets, too.
        • by pluther (647209) <pluther@us3.14a.net minus pi> on Wednesday December 20, 2006 @04:36PM (#17316968) Homepage
          ...when it comes to personal freedoms, we're doing to ourselves what we feared the Soviets would do to us.

          It's all part of the War on Terror, you know.

          Why do the terrorists attack us? It's because they Hate Our Freedom.

          Get rid of that, and we'll be rid of terrorism.

        • by Oriumpor (446718) on Wednesday December 20, 2006 @04:45PM (#17317112) Homepage Journal
          Looking around it may not seem that bad, but since I've grown up with the following expectations I'll just repeat them:

          1. While enrolled in education, everything I do or say on a campus is subject to "restricted" rights
          2. An animal can determine whether or not there's a 4th amendment allowance to search me
          3. I can be told to take medication or be placed on the dole (if 'diagnosed' with a 'mental condition')
          4. My phones are probably tapped at some point in a domestic communication, and are definitely tapped at least once on the way out of the country (have been since the 70-80's see:echelon)
          5. My internet communication is probably tapped domestically (if I gotta go through Mae west etc or any SF pop there's a good chance) and internationally at least once there's a sniffer present.
          6. My electricity bill is public information (used as a 4th amendment allowance to search homes)
          7. The expectation of anonymity of a person is no longer allowed (you MUST provide your identity if the secret^H^H^H^H^H^H police ask for it.)

          Need I continue? I'm sure I could, but it just gets depressing after that point... did I say depressing? I mean It's great that this is happening! Why wouldn't I want the world to be a "safer" place?
    • by BigBuckHunter (722855) on Wednesday December 20, 2006 @04:03PM (#17316482)
      More like, is it legal to get a court order to tell Mailboxes etc to give the police accesses to someone elses privately (Ups/Fedex) delivered parcel at Mailboxes etc?
       
      I believe the answer is... Yes! I thought that this is something that was known and accepted for the last bajillion years? I remeber working at a BBS in the 90's. The police called and said that they were investigating one of our susbscribers and wanted his e-mail. I asked the boss, and he said "sure". No court order, no warrnt, we just gave it to them. It was a privately owned business, and the owner said, "sure".
       
      BBH
      Note to the spelling police, I'm on an iMac keyboard.
    • by goldcd (587052) on Wednesday December 20, 2006 @04:37PM (#17316980) Homepage
      You're not physically sending anything. You're connecting to an smtp server and asking them to pass the message along for you.
      Think of it like you sending a letter to a friend, asking them to transcribe it for you and then pass it onto another person - and then suing your friend for reading the message as they transcribed it.
      When an email leaves your own network, you're relying on civic minded people to pass it along for you. Back to the snail mail analogy, if your package is lost in the post you can claim your money back as they courier had a duty of care, if your email goes missing 'tough'. It's up to each hop to determine whether or not they want to pass it on and they can do with your email as they wish.
    • by Frequency Domain (601421) on Wednesday December 20, 2006 @04:43PM (#17317070)
      If you write your message on a post card, they certainly can read it. Normal e-mail is the electronic equivalent of a postcard. If you're e-mailing something that you wouldn't want send through snail mail without an envelope, you should be using encryption. That way, even if they have the right they may lack the ability (to misquote Shrek).
  • by manifoldronin (827401) on Wednesday December 20, 2006 @03:48PM (#17316250)
    The perpetually fitting joke: "Nothing to see here. Move along."
  • Liability (Score:3, Insightful)

    by omeomi (675045) on Wednesday December 20, 2006 @03:49PM (#17316262) Homepage
    I wonder if it's possible to (successfully) sue whatever private entity gave up your email information (i.e. the "someone else's computer")...Seems like the government should be forced to get a warrant even for your email stored at your ISP...otherwise, your ISP should be liable for not protecting your personal information.
  • Hearsay Evidence? (Score:3, Informative)

    by wiz31337 (154231) on Wednesday December 20, 2006 @03:50PM (#17316270)
    Even if your e-mail is stored on another individual's computer seized under a search warrant, the government cannot use this information as evidence.

    According to the Federal Search and Seizure Manual written by the Department of Justice:


    See United States v. Upham,168 F.3d 532, 535 (1st Cir. 1999). First, the warrant must describe the things to be seized with sufficiently precise language so that it tells the officers how to separate the items properly subject to seizure from irrelevant items. See Marron v. United States, 275 U.S. 192, 296 (1925) ("As to what is to be taken, nothing is left to the discretion of the officer executing the warrant."); Davis v. Gracey, 111 F.3d 1472, 1478 (10th Cir. 1997). Second, the description of the things to be seized must not be so broad that it encompasses items that should not be seized. See Upham, 168 F.3d at 535. Put another way, the description in the warrant of the things to be seized should be limited to the scope of the probable cause established in the warrant. See In re Grand Jury
    Investigation Concerning Solid State Devices, 130 F.3d 853, 857 (9th Cir. 1997). Considered together, the elements forbid agents from obtaining "general warrants" and instead require agents to conduct narrow seizures that attempt to "minimize[] unwarranted intrusions upon privacy." Andresen v. Maryland, 427 U.S. 463, 482 n.11 (1976).


    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.
    • by brunascle (994197) on Wednesday December 20, 2006 @04:03PM (#17316480)
      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.
      that's good, since the "evidence" could easily be forged.
    • Re:Hearsay Evidence? (Score:3, Informative)

      by GodInHell (258915) * on Wednesday December 20, 2006 @04:03PM (#17316488) Homepage
      Your citation is irrelevant.

      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

    • by bourne (539955) on Wednesday December 20, 2006 @04:14PM (#17316674)

      Yeah, but...

      Read the article carefully. The ISP has the right to read the email, and pass it along to law enforcement.

      USC 18, 2511(2)(a)(i):

      It shall not be unlawful under this chapter for an operator of a switchboard, or an officer, employee, or agent of a provider of wire or electronic communication service, whose facilities are used in the transmission of a wire or electronic communication, to intercept, disclose, or use that communication in the normal course of his employment while engaged in any activity which is a necessary incident to the rendition of his service or to the protection of the rights or property of the provider of that service, except that a provider of wire communication service to the public shall not utilize service observing or random monitoring except for mechanical or service quality control checks.

      Translation: If dork-o sends three billion copies of his spam through your ISP, he is going to impact your service. You are then justified, as a system administrator, to view those messages as investigation in the course of "protection of the rights or propterty of the provider of that service" - it is one of the exceptions under which wiretap is allowed. Once you've added up enough costs to interest the appropriate government resource,you call them in, provide them with the information that they couldn't get without a warrant - but you could! - and they're off to the races.

    • by Otterley (29945) on Wednesday December 20, 2006 @04:14PM (#17316680)
      You misunderstand the concept of hearsay in evidence law. Hearsay is cause for exclusion of a statement introduced for the purpose of proving the truth of the matter asserted in the statement. (i.e., it would be excluded if the issue was whether the pills really did provide "male enhancement"). However, to introduce the email for the purpose of showing that it violated a law relating to UCE would not violate any evidence rule.
    • by westlake (615356) on Wednesday December 20, 2006 @04:22PM (#17316782)
      Even if your e-mail is stored on another individual's computer seized under a search warrant, the government cannot use this information as evidence.

      From the U.K., but short and to the point:

      Email content is treated in the same way as verbal and written expressions and statements and is admissible in a court of law. It is a common misconception that email messages carry less weight than letters on headed notepaper.

      The problems are only likely to arise if your opponent disputes the authenticity of what you produce. The same applies to traditional letters - i.e. it is only when their authenticity is questioned that proof becomes a problem.

      If the authenticity of an email produced in court is questioned, be prepared to provide evidence of the audit trail showing where the email originated and the route by which it was sent to your computer. The audit trail would show if there had been any opportunity for someone to interfere with the email as they are usually sent between several servers before they reach their destination.

      Email have raised problems for the courts. In the past, evidence would invariably take the form of an original signed document and if that was not available then a copy of that signed document could be substituted. The signature would be the key to proving the authenticity of the document (of course, the argument can still be made that the signature is a fake). The difference with email is that there is no such thing as an 'original' since the print-out is the end result of a technological process. It is the audit trail showing that process which can be used to persuade the court of the print-out's authenticity if this is challenged by your opponent.

      Forensic computing services can help if it becomes necessary to prove that a hard copy of an email produced in court is genuine.

      Email as court evidence [out-law.com]

  • by Jerf (17166) on Wednesday December 20, 2006 @03:52PM (#17316312) Journal
    This is just a specific instantiation of a general problem with computers.

    With old-style non-electronic messages, there is no distinction between the contents of the letter and the physical letter itself. Hundreds of years of laws and general ethical principles were written based on the assumption this will always be true. Now it's not, and it's all breaking down, but most people don't even notice this is the root of the problem because the assumption is so deeply ingrained. Instead, they want to just hack around the problem, not noticing you really need to rethink the whole system.

    Copyright has the exact same problem [jerf.org].

    The internet privacy advocates mentioned in the article, which the general /. populace will probably view with more sympathy than the government, by claiming that email should be treated just like physical mail are really committing the same error as the government, who are basically acting as if they do have a place where they could grab a physical letter and therefore they can, just as if it were physically sitting somewhere.

    The reality is that we need to sit down and really re-think the entire situation. The old model is broken.
  • Catch 22... (Score:4, Insightful)

    by the_skywise (189793) on Wednesday December 20, 2006 @03:55PM (#17316354)
    "E-mail providers also routinely screen messages for spam, viruses and child pornography. That further undermines claims to the privacy of e-mail, government attorneys say."

    Good point here. If you're allowing a company to snoop your email for spam/viruses then you're already negating the privacy issue. If the judges decide that privacy wins out then the spam companies can sue to say that the big ISP's have no right to snoop their mail for spam before reaching your computer.

    On the one side you've got the phone-call analogy (where the government can't eavesdrop on your phone calls even though they go through a public system) and on the other you've got the photo developing places which can turn over photos to the government if they deem something they see is illegal.

    Definitely an interesting case.

    • by Deadplant (212273) on Wednesday December 20, 2006 @04:27PM (#17316854)
      I don't buy that one.
      I pay an agency to come and clean my house, the women they send has keys, she comes and goes while I'm at work.
      That's an arrangement I made with her. Is that supposed to mean that federal agents may now come and search my house any time they want without a warrant?
      I gave up my privacy to google so they can perform specific tasks for me. (specifically, cleaning my email) I don't see the logical reasoning that leads from that to granting the FBI access to my email.
    • by UbuntuDupe (970646) * on Wednesday December 20, 2006 @04:31PM (#17316914) Journal
      I don't know how bad this analogy is, but ...

      Good point here. If you're allowing a company to snoop your email for spam/viruses then you're already negating the privacy issue.

      The Post Office checks for dangerous characteristics of packages (smell, leading, powdery residue, someone pounding on inside demanding that you let him out) without opening them. The ISP checks for dangerous characteristics without any human actually reading the content.
    • by pbjones (315127) on Wednesday December 20, 2006 @04:42PM (#17317052)
      Exactly, you can't have it both ways, but it is a question of what happens after they read the eMail. In the case of Spam, you are made aware of spam filters etc, and you may have the choice to not use them, but in the case like this, you are not told that people are reading you eMail, even when it is stored on another computer.
    • by wiredog (43288) on Wednesday December 20, 2006 @04:42PM (#17317068) Journal
      Pity. One of the more insightful comments on this story.
    • by gurps_npc (621217) on Wednesday December 20, 2006 @04:43PM (#17317074) Homepage
      Are you being sarcastic?

      When I give company A permission to examine my email and categorize it for me, that in no way gives company A permission to show the email to anyone that does not work for company A.

      Your argument would be similar to someone claiming "The fact that you paid the dry cleaner to clean your clothing grants the government the right to take your clothing and run tests to see if it had any blood stains on the clothing."

      Such an argument is not what a court would call reasonable.

  • One word.. (Score:2, Informative)

    by slummy (887268) <shawnuthNO@SPAMgmail.com> on Wednesday December 20, 2006 @03:56PM (#17316374) Homepage
    Encryption. The apathetic always ask me, "Why encrypt your email/files?". This article is my answer to them.
    • by MyLongNickName (822545) on Wednesday December 20, 2006 @04:14PM (#17316666) Journal
      This article is my answer to them.

      You send male enhancement emails?
    • by Archangel Michael (180766) on Wednesday December 20, 2006 @04:15PM (#17316700) Journal
      I'm sure their standard response is ... "I've got nothing to hide". They don't realize that at this moment, something in their email is innocuous, but that same something under another circumstance is not. That joke you sent two days ago about Jewish Holidays and religious practices is innocent until the proper hate crimes are applied to it, but only if you aren't jewish. Same thing with the "N" word, which is taboo unless you are of the proper skin pigmentation group.

      Also, as a complete aside ...

      Let me get this straight, people want to "enlarge" certain anatomical parts, so that they can be "seen" as being more impressive (see "Smiling Bob" commercial), but don't want people to know about their email containing products to supposedly accomplish said effect. Strange
  • Interesting thing (Score:4, Interesting)

    by gillbates (106458) on Wednesday December 20, 2006 @03:58PM (#17316400) Homepage Journal

    So, if I understand this right: The executive branch believes it has a right to read our email, because we have no "Constitutional" expectation of privacy, but the White House can refuse to turn over emails to Congress, because, alas, email is private?

    So, I guess the Constitution gets interpreted differently when the subject of an investigation is the President. Hmmm....

    • by east coast (590680) on Wednesday December 20, 2006 @04:11PM (#17316632)
      Not knowing the exact incident you're talking about I think the article does a somewhat shoddy job of describing what exactly is legal.

      IANAL but my take on this is that if there is a search warrant on your PC for child pr0n that I would not have to be served a warrant as well if I sent you the files in question and that these same files that are being used against you as evidence would also be evidence that could be used against me as the sender.

      Furthermore I'm reading it as if I had child pr0n in my GMail account a warrant could be served against Google to get evidence from my GMail account without having to serve a warrant to me. This seems to me that they are basically saying that the mail itself is the property of GMail and not mine. This brings up the question of; can I refuse to honor their request to see my e-mail if it's handled on a third party server (Google in the case of GMail) since I do not technically have ownership of this mail? Do I even have the ability to show them this e-mail since the warrant would only cover my own property?

      I don't think there is any real question of legality in my first scenario under today's law but the second one may be more questionable under current law.

      Again, IANAL and most of this should be taken as a question more than an answer as to what is currently legal and illegal involving e-mail seizure.
    • by wiredog (43288) on Wednesday December 20, 2006 @04:14PM (#17316678) Journal
      Then I can do with it what I want. Including give it to someone else.
    • Re:Interesting thing (Score:4, Interesting)

      by meta-monkey (321000) on Wednesday December 20, 2006 @04:45PM (#17317110) Journal
      No, that's not what this is about.

      The crux of the matter is that the owner of the machine on which the email resides is the focus of any attempt to read said email. So if your ISP has your email on their server, the feds can ask them if they'll hand over the email, without ever having to ask you. The ISP can either say, "Sure, here it is!" again without having to ask you, or they can say "No, we keep our customer's email private." At that point, the feds can get a warrant to search the ISP's computers, again without having to ask you.

      In the case of the White House, I imagine they have their own, highly secure email servers, on which the President's email is stored. It is not stored by another outside ISP. Therefore the only way for Congress to get the President's email is to ask the White House, or subpeona it.

      Not that that would matter, anyway. See Executive Privilege [wikipedia.org].

      Sorry, I know a "Bush is evil" post is an easy +5 on /., but you're barking up the wrong tree on this one.
  • by jhines (82154) <john@jhines.org> on Wednesday December 20, 2006 @04:00PM (#17316434) Homepage
    If you want privacy on email, that is what port 25 is for, and the sender can exchange email directly to the receipent.

    When the email hits a third party server, it is just data to them, and they can do what they want with it, subject to whatever agreement you have. So unless you signed a deal with them (IE your ISP) there is nothing special about it.

    As long as the authorities got proper warrants to serve the third party for their data, they get it.
  • by Aqua_boy17 (962670) on Wednesday December 20, 2006 @04:01PM (#17316456)
    I just read that the President wants to increase the size of the military in Iraq. Maybe someone should tell him about this "natural male enhancement" so we can use it there?
  • by AK Marc (707885) on Wednesday December 20, 2006 @04:08PM (#17316594)
    I read the sensationalist title, and I read the summary, and I read the article. From that, there is no one disputing the governent having the right to read your email. The title is implying that the government is reading people's emails without cause. Regardless of whether that is the case, that is not related to what is happening here. The only question is what level of paperwork the government must go through.

    During the investigation, agents obtained court orders allowing them to collect thousands of Warshak's e-mails from Yahoo and another e-mail provider. A court order requires a lesser burden of proof than a search warrant.

    Everyone is in 100% agreement that with a search warrant, the government may obtain the emails in question. So, the answer to the useless title is "Yes, everyone involved in this case agrees that the government may read your emails." But an accurate title wouldn't have been as sensationalist. I guess generating page views is much more important than actually being descriptive. I don't mind whoring for page views. That's the nature of the Internet. I do object to lies and misleading statements designed to generate page views. I think that Slashdot has gotten to the point where the paid editors are supposed to post dupes, bad grammar, wrong titles, and such in order to bring out the people that complain about them (unfortunately, I'm in that group).
  • by rewt66 (738525) on Wednesday December 20, 2006 @04:08PM (#17316598)
    Some sleazebag spammer sends me spam. I complain to the authorities. Said authorities decide that the spammer is breaking the law (fraud, spam laws, whatever). And the spammer says that the e-mails can't be used as evidence against him, because it's his private communication? That's the craziest legal theory I've heard since SCO.

    You send your trash to me, I'll let the feds take it as evidence, gladly. You send several million of your trash to Yahoo, Google, and Hotmail, and they probably feel the same.

    Free clue to spammers: The feds aren't the ones invading our privacy here. You are.
  • Encryption (Score:3, Informative)

    by SirGarlon (845873) on Wednesday December 20, 2006 @04:09PM (#17316608)

    The gov't can read my e-mail all they want. At least, they can try to. http://enigmail.mozdev.org/ [mozdev.org]

  • by Sloppy (14984) on Wednesday December 20, 2006 @04:19PM (#17316740) Homepage Journal

    The question of whether or not they have the right to do that, may be somewhat interesting in some theoretical way. Go ahead and debate it, law students. But ultimately, it is irrelevant.

    They have the capability. And it's not just the government -- lots of people have the capability. Your email can be easily intercepted and there's little you can do to prevent that, and furthermore, you're not going to know when it happens. Make it illegal, and it will still happen.

    So, given the reality that is imposed upon you -- a reality that no legislation or court, no liberal or conservative party, will ever be able to even influence -- what are you going to do about it?

    Let them read ciphertext. Debating the legality of plaintext intercepts is a waste of time.

  • Hardly New (Score:3, Informative)

    by Anonymous Coward on Wednesday December 20, 2006 @04:33PM (#17316934)
    This is not the slightest bit new.

    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.

  • by Flexagon (740643) on Wednesday December 20, 2006 @04:42PM (#17317058)

    This is very old news [eff.org].

    More importantly, it's a good reason to avoid all e-mail hosting services like gmail, Yahoo! Mail, etc., until this is resolved.

  • Spammer (Score:5, Interesting)

    by pluther (647209) <pluther@us3.14a.net minus pi> on Wednesday December 20, 2006 @04:43PM (#17317078) Homepage
    Smart of them to go try this out against a spamming fraudster (or is that fraudulent spammer)?

    Certainly there is easily enough evidence out there to obtain a search warrant.

    And it's not like search warrants are difficult to obtain.

    The only reason I can think of not to bother in this case would be because someone wanted to set a precedent. And who better to set one against than someone hated by everyone?
  • by Wiseazz (267052) on Wednesday December 20, 2006 @04:45PM (#17317104)
    The "Stored Communications Act of 1986" clearly needs to be updated, which is another example of why we need to keep a close eye on technology-specific legislation. Today's good idea becomes tomorrows loophole (for gov and criminals alike - both of which will take full advantage without thinking twice).

    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!
  • by RvLeshrac (67653) on Wednesday December 20, 2006 @04:59PM (#17317330)
    You've all (or at least the vast majority of you) failed to notice that this case does not even invoke this act.

    If you send me a letter describing in great detail how you intend to blow up with on , that letter then becomes my property. I can pass it along to law enforcement agencies as I see fit, etc.

    If you send me spam, I can then pass that spam along to law enforcement agencies as I see fit. If you give me a 3 lb brick of black-tar heroin, I can do the same.

    This act affects electronic messages which are stored by a recipient and then siezed, not messages which are voluntarily submitted to law enforcement. There is very little you can do if someone else legally obtains evidence against you and then hands it over to someone else, save for a lawsuit against the individual in question.

    That said, the defendant in this case (The US Government) will be defending this act to the end, regardless of whether or not the act violates personal liberties - it DOES appear to, but again, this act has absolutely no bearing here.
  • by eno2001 (527078) on Wednesday December 20, 2006 @05:02PM (#17317372) Homepage Journal
    ...why I say; run your own mail server. I do it. I've done it since 2001. I've had too many instances of incompetence at ISPs and large mail service providers losing my mail and not restoring it. Sure, they can read it on the way in or out, but then it's a different beast than actually getting onto my system without a warrant. Plus I have the added benefit of having a private mail system that is not accessible to anyone on the net as it's on a darknet used by friends and family. Simple solutions really. Until someone decides to make them "illegal".
  • by bouis (198138) on Wednesday December 20, 2006 @05:05PM (#17317422)
    This sounds like a pretty simple 4th amendment issue, phrased as:

    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.

  • by acroyear (5882) <jws-slashdot@javaclientcookbook.net> on Wednesday December 20, 2006 @06:14PM (#17318608) Homepage Journal
    In the infamous Secret Service seizure [sjgames.com] of Steve Jackson Games' Illuminati Online BBS system in 1990 (case resolved in 1993), the court found that the government reading unread emails on a machine by seizure of the machine was not "wire-tapping", in spite of arguments by the EFF that the end result is the same - the government sees your communication before you do.

    For all of the alledged "protections" congress has given electronic communication, they've all been mere extensions of protection for variations of wire-tapping. If the government can actually get the physical hardware in their hands, anything goes. There is no sense of protected files or folders on a disk drive.
  • by the_REAL_sam (670858) on Wednesday December 20, 2006 @10:08PM (#17320922) Journal
    They do so need a warrant. See: Amendment IV, United States Constitution

    "The right of the people to be secure in their persons, houses, papers, AND EFFECTS, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

    In any case, they still DO need a warrant to search that 3rd party server. The warrant would simply have to describe the place to be searched, and specify the things to be seized, in accord with the ammendment.

    There are lots of analogies: P.O. Box, Voice Mail, Tapped phone lines, Gym locker, direct ip-ip chat (with no brokering middleman server, except routers). Each one of them has a slightly different feel, but in each case it seems clear that the RIGHT thing to do is respect the person's privacy. That the email sits on a server with a delay does not seem relevant (any more than the latent speed of light transmission time when the sound is IN the phone lines)

    However, until the authorities have been duly punished for violating the man's right to privacy, it would behoove those who WANT their rights protected to run their own mail servers (either in foreign, non-extraditing countries or in their own homes.) :-)

    http://james.apache.org/ [apache.org]

    If electronic communications had existed at the time of the framing of the constitution, I really doubt they would have left gaps for the government to abuse our privacy by means of raiding electronic mailboxes.

    PS -- It wouldn't hurt to use pgp encrypted mail ...uh... sure.

    "a-l-w-a-y-s---d-r-i-n-k---y-o-u-r---o-v-a-l-t-i-n -e" :-D

The end of labor is to gain leisure.

Working...