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This discussion has been archived.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.
    • 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: (Score:2, Insightful)

          by jacem (665870)
          To add to your point. Letters in seeled envelopes {sp} are protected postcards are not. If I send a postcard I can't assume that only the addressed recipient will turn it over and read it. But, I can assume the the seeled envelope will arrive seeled.

          JACEM
      • 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: (Score:2, Interesting)

          by TheUnknown (90519)
          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: (Score:3, Informative)

            by grylnsmn (460178)
            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.
        • And I would argue (Score:3, Insightful)

          by Sycraft-fu (314770)
          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
          • Re: (Score:3, Insightful)

            by xappax (876447)
            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 eavesdroppi
        • 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].

      • 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 admiss
    • 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: (Score:3, Interesting)

        by mark-t (151149)

        And what if you say you don't have the keys and you don't have any clue what the thing is about?

        Seems that a really good way of getting someone you don't like incarcerated... send them some email (with a faked email return header, of course) that contains an encrypted message with no indication of how to decrypt it, but incriminating evidence within the email that its contents contain an illegal conspiracy.

        Ultimately, if the person says they don't have the keys, the government would have to take them a

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

      by mattmacf (901678) <mattmacf@@@optonline...net> 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.
    • 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.
    • 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: (Score:3, Informative)

        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.

        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: (Score:3, Informative)

      by Qzukk (229616)
      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.
      • 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@noSPAm.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.
        • 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 relat
    • What if... (Score:2, Insightful)

      by BenSchuarmer (922752)

      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)
      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?

        • 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"

        • by JavaLord (680960)
          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 t
        • 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)
          ...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.

        • 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
    • 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, w
    • 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 clai
    • 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).
  • 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)
      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: (Score:3, Informative)

      by GodInHell (258915) *
      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)

      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 a

    • by Otterley (29945)
      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.
    • 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

  • 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)
      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.
    • 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)
      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.
    • Pity. One of the more insightful comments on this story.
    • by gurps_npc (621217)
      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)
    Encryption. The apathetic always ask me, "Why encrypt your email/files?". This article is my answer to them.
    • This article is my answer to them.

      You send male enhancement emails?
    • 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
  • 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....

    • 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 GMai
    • Then I can do with it what I want. Including give it to someone else.
      • by Deadplant (212273)
        If I have a gun in my hand and you don't then I can do what I want. Including shooting your kneecaps crippling you for life.

        We're talking about what you "should" do not what you "can" do.
        Sadly under this administration many US agencies have been displaying an eager "can-do" attitude.
    • 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.
  • 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?
  • 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
  • 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.
    • The article isn't 100% clear but it doesn't sound to me as though the emails in question were spam. It seems more likely that they were communications relating to his business with incriminating evidence in them. He's being charged with mail fraud and money laundering, not with sending spam.
  • 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]

  • 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 impos

  • 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.

  • 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&usa,net> 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

"Don't worry about people stealing your ideas. If your ideas are any good, you'll have to ram them down people's throats." -- Howard Aiken

Working...