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Communications Privacy

Expectation of Privacy Extended to Email 161

Posted by ScuttleMonkey
from the making-it-harder-to-snoop dept.
An anonymous reader writes "In a 6th circuit court decision [PDF] today 4th amendment expectation of privacy rights were extended to email. 'The ruling by the Sixth U.S. Circuit Court of Appeals in Ohio upholds a lower court ruling that placed a temporary injunction on e-mail searches in a fraud investigation against Steven Warshak, who runs a supplements company best known for a male enhancement product called Enzyte. Warshak hawks Enzyte using "Smiling Bob" ads that have gained some notoriety.'"
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Expectation of Privacy Extended to Email

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  • too bad (Score:5, Insightful)

    by mchale (104743) on Monday June 18, 2007 @04:19PM (#19556973)
    I agree wholeheartedly with the court's findings -- people have an expectation of privacy when sending (hardcopy) written correspondence, and it makes sense to extend that privelege to the digital realm as well.

    It's just a shame that the right decision comes down on the side of the spammer.
    • Re:too bad (Score:4, Interesting)

      by LWATCDR (28044) on Monday June 18, 2007 @04:29PM (#19557083) Homepage Journal
      Yea so you can go to jail for just having an Ethernet sniffer!
      Really people should have the same expectation of privacy in an email as they do with a postcard. None at all.
      It is clear text.
      • Re:too bad (Score:5, Insightful)

        by DragonWriter (970822) on Monday June 18, 2007 @04:36PM (#19557165)

        Yea so you can go to jail for just having an Ethernet sniffer!


        Nothing in the current decision suggests that, since it is about the meaning of the Fourth Amendment and therefore the limits of government power.

        It is clear text.


        So are much of the the hardcopy material in which you have a reasonable expectation of privacy under the Fourth Amendment. Encryption has never been a Constitutional prerequisite to a reasonable expectation of privacy.
        • Re:too bad (Score:5, Insightful)

          by Myopic (18616) on Monday June 18, 2007 @05:48PM (#19557977)
          Aha, but there you are wrong. If you send a postcard, you have very low expectation of privacy. However, if you put your letter inside an envelope, then you have an expectation that the envelope will only be opened by the intended recipient. Regular email as we mostly know it is like a postcard, but you can put your postcard into an electronic envelope by encrypting it, which would give you a greater expectation of privacy. Sure, a person can still break your encryption, but that person could also just open your envelope. We would recognize these actions as crimes, preserving your privacy.

          One difference might be that people sort of think of email more like a letter than a postcard. A court could find that email has protections similar to a letter. As a techie, I would disagree with that, exactly because of what the GP said: it's so easy to sniff around and see emails that it's difficult to say it's a protected medium. I predict in the future a huge legal case where this exactly is the crux -- the question, what is the expectation of privacy in an unencrypted email? I further predict that the result will be similar to a postcard, not a letter.

          To be clear, the decision today didn't look at that question, rather the question of whether a warrant is required to search email at all. I see that as so blatantly obvious that I'm shocked the government would even question it. Look, government, hey, you know for 250 years courts have consistently told you that you need a warrant to search just about everything that isn't an emergency, so by now you should be used to it.
          • Re:too bad (Score:5, Insightful)

            by Chris Burke (6130) on Monday June 18, 2007 @06:19PM (#19558341) Homepage
            Regular email is like a snail-mail in an envelope -- it is trivial to read it, but it requires conscious effort to do so. A postcard could fall on the ground text-up and be read by random passers by who just happened to glance at it. Unless there is something serious going wrong, someone else's email is not going to just pop up on your screen. You have to make a conscious effort to read someone else's email, and yes I'm including using a packet sniffer.

            Encryption is like shipping your letter in a box with a combination lock on it. That may be a really good idea if the contents of the letter are extremely important, but 100% absolutely NOT required for you to have an expectation of privacy vis a vis the 4th Ammendment.

            People keep confusing "expectation of privacy" with "practical feasibility of someone violating their privacy if they want to". They are not the same thing. As a techie you might think it has something to do with how difficult it is to read email, but that's really irrelevent, which is obvious if you look at every other method of communication.

            I have an expectation of privacy when conversing in my home, even though just putting your ear to my window would allow you to hear.
            I have an expectation of privacy when using a cordless phone, even though especially the old ones were trivial to listen in on.
            I have an expectation of privacy when sending a letter, even though a light shone through the envelope can reveal its secrets.

            Now, if you are worried about people who don't care about your expectations of privacy or the law, and your data is important, then yes you should be aware of the practical reality and take extra precautions, eg encryption, or a sound-proof booth in your home, or whatever. That is not the same as an expectation of privacy.

            Expectation of privacy means you expect you will be granted privacy, not that you expect that nobody can breach your privacy.
            • Re: (Score:3, Informative)

              by pauljlucas (529435)

              I have an expectation of privacy when using a cordless phone, even though especially the old ones were trivial to listen in on.

              No you don't. From here [ufl.edu] (among other places):

              [I]n United States v. Smith, while conceding that nearly half of all American households use cordless telephones, the Fifth Circuit held that "pure radio communications" are not afforded the same Fourth Amendment protection as communications carried by land-based telephone lines because "broadcasting communications into the air by radi

            • by Myopic (18616)
              Excellently argued. I hope courts follow your reasoning. Still, if applied to criminal law, that would make packet sniffers criminal tools, which I hope won't happen.
              • Kind of like locksmithing tools, old credit cards, stethoscopes, Slim Jims, crowbars, and coat hangers are all criminal tools which are highly regulated?
              • by Altus (1034)

                My understanding of the phrase "expectation of privacy" is that it means that any evidence that is collected via your packet sniffer would not be admissible in court unless it was obtained with a warrant. This doesn't make the tool illegal, or likely even illegal to use, just that it would not be admissible evidence.

                If my reading of this is correct this is probably a good thing.
            • by Plutonite (999141)
              You are right, parent is mostly wrong. Just because people have become accustomed to relaxed attitudes towards things that are done via software does not mean they require less of an effort. In fact, the "effort" part can be taken out of this argument entirely due to difference between physical and informational domains. It is the intent that matters, and in both cases the intent is to infringe upon the privacy of information that is not intended for public use.

               
          • Re: (Score:2, Interesting)

            by imgunby (705676)
            I don't believe your analogy (which we've all beaten to death here) is entirely accurate though. Certainly, I will concede that the email headers are like the postcard; no reasonable expectation to privacy, any more than the addressee is "secret." However, I believe that there is sufficient reason to presume that the body of the message is reasonably "private" since normal internet equipment does not need to examine that information to route it across the web. And for the "difficulty" in sniffing that "secr
          • by packeteer (566398)
            Aha, but there you are wrong. If you send a postcard, you have very low expectation of privacy. However, if you put your letter inside an envelope, then you have an expectation that the envelope will only be opened by the intended recipient. Regular email as we mostly know it is like a postcard, but you can put your postcard into an electronic envelope by encrypting it, which would give you a greater expectation of privacy. Sure, a person can still break your encryption, but that person could also just open
          • Re: (Score:3, Interesting)

            by DamnStupidElf (649844)
            To be clear, the decision today didn't look at that question, rather the question of whether a warrant is required to search email at all. I see that as so blatantly obvious that I'm shocked the government would even question it. Look, government, hey, you know for 250 years courts have consistently told you that you need a warrant to search just about everything that isn't an emergency, so by now you should be used to it.

            How much leeway does the U.S. government have with the postal service to begin with
          • Re:too bad (Score:4, Funny)

            by mcrbids (148650) on Monday June 18, 2007 @08:28PM (#19559423) Journal

            One difference might be that people sort of think of email more like a letter than a postcard. A court could find that email has protections similar to a letter.


            But how can this situation be likened to a car? Car analogies are always the best way to explain complicated things!
            • by Myopic (18616)
              Not as hard as you think.

              A postcard, or a plaintext email, is like the front seat of your car: you have very low expectation of privacy because it's in plain public sight. A cop who pulls you over for a minor infraction will see your drugs sitting in the passenger seat and ask you about them.

              A sealed letter, or an encrypted email, is like the trunk of your car: you have a high expectation of privacy because it's hidden from sight and locked. A cop who pulls you over needs consent or probable cause to search
              • by number11 (129686)
                A postcard, or a plaintext email, is like the front seat of your car: you have very low expectation of privacy because it's in plain public sight. A cop who pulls you over for a minor infraction will see your drugs sitting in the passenger seat and ask you about them.

                So you're saying that if your ISP lets a cop root through all the user mail, maybe because he really needs to get that url so he can get some viagra, that if he accidently looks at your mail and sees something, he can take action. Somehow this
                • by Myopic (18616)
                  I was thinking more of transmitting your email unencrypted over an unencrypted line, like sending email from free wifi in the park. Someone watching the bits go by will see your email. Searching your ISP email box doesn't follow the metaphor; that would definitely require a warrant. But on the other hand, having your email stored on a server is what gives you the expectation of privacy. That would be more like receiving a postcard in the mail, and then putting it in your filing cabinet. The police need the
          • Re:too bad (Score:4, Insightful)

            by DerekLyons (302214) <fairwater@gmFREEBSDail.com minus bsd> on Tuesday June 19, 2007 @04:41AM (#19562643) Homepage

            Aha, but there you are wrong. If you send a postcard, you have very low expectation of privacy.

            Actually - I have a very high expectation of privacy for that postcard. Why shouldn't I? It's not on public display and at no point in its transit from sender to recipient is it ever in a state where a casual member of the public can gain acess to it to read it.
             
            In fact, it takes abnormal conditions (mailbox fails in some manner and the postcard ends up on the ground) or deliberate malfeasance (somone reaches into the mailbox or delivery vehicle) for it to become exposed to a third party. Furthermore, a letter in an envelope has exactly the same privacy failure modes with the trivial requirement of opening the envelople required.
             
             

            Regular email as we mostly know it is like a postcard

            Precisely - regular email cannot be acessed by a third party absent accident or malfeasance.
             
             

            One difference might be that people sort of think of email more like a letter than a postcard. A court could find that email has protections similar to a letter. As a techie, I would disagree with that, exactly because of what the GP said: it's so easy to sniff around and see emails that it's difficult to say it's a protected medium.

            This is precisely why your analogy fails - it's easy to sniff around if the person has privileged acess _or_ deliberately utilizes tools to perform the sniffing. Just like a physical letter (or postcard) it takes either a systematic failure or deliberate action to view the contents of an email, it is virtually impossible to do so casually.
      • Re:too bad (Score:4, Interesting)

        by Vancorps (746090) on Monday June 18, 2007 @04:39PM (#19557197)

        Don't know how email works in your organization but here it's encrypted until it hits the first MTA. An ethernet sniffer won't get you anywhere. A postcard also cannot be removed from the mailbox by anyone other than the recipient, a representative, or through a court order. That sounds about right for email.

        Just because it's realistic to say that a few people might read the postcard while handling your mail doesn't mean that the police should be able to just grab all your mail and rifle through it without a warrant.

        • Re: (Score:3, Interesting)

          by LWATCDR (28044)
          I agree that email should require a court order for the police to search it however just as two people holding a conversation in a public place have no expectations of privacy the same is true of email.

          At my office we just got an email from a customer and she included her credit card number in the EMAIL! No we didn't tell her to send it but I hope like heck that she doesn't read this story and think that it is alright to do in the future!
          • Re:too bad (Score:5, Insightful)

            by Vancorps (746090) on Monday June 18, 2007 @05:04PM (#19557461)

            The difference is that the casual observer can hear two people holding a conversation in a public place. You cannot casually observe email without explicitly trying. That is the big difference, it takes effort to look at email and that is why there is an expectation of privacy.

            I've dealt with a few organizations where they've sent credit card info in an email. They are business cards with fraud protection so most people don't worry about it. Of course you must trust the recipient. Ultimately no one things their email will be intercepted in transit because that rarely happens due to the fact that you'd have to have a compromised DNS server to accomplish it or compromise a router in the path. In either circumstance an alternate crime has already been committed and will be dealt with. I'm not sure there has ever been a case of credit card fraud because someone sent and email with credit info and the message was intercepted. It's always the recipient of the information mishandling the data in some way.

            Personally I don't care either, what I write in email I freely share with others because I use my corporate account. I'm the only one in the company authorized to go through email so I really don't have to worry, beyond that it just doesn't matter. If you speak ill of someone speak ill of them to their face. I've never been afraid of my emails being public but given that the execs often plan secretive meetings and the future of the company through email I can understand the expectation of privacy. Just because I can go through everyone's email doesn't mean that I do. I require a specific reason and only then will I move forward. I do this even when an exec asks me to pry into email accounts. If they don't have a reason then I don't do it. The company lawyer supports me in it all so I'm pretty safe.

            I would agree that sending CC info in email isn't necessary the brightest thing to do but no more so than giving it over the phone to someone which also enjoys an expectation of privacy.

      • Re: (Score:3, Informative)

        Only if you don't run it through PGP or some other encryption program first
      • Re: (Score:3, Insightful)

        by TFGeditor (737839)
        "Really people should have the same expectation of privacy in an email as they do with a postcard. None at all.
        It is clear text."

        Except for the fact that you cannot read someone's email as a routine matter of simly handling it, as in a mail carrier. It takes extraordinary effort to access/read someone's email, akin to steaming open an envelope. Ergo, your assertion is wrong.

        • by AdamKG (1004604)

          Except for the fact that you cannot read someone's email as a routine matter of simly handling it, as in a mail carrier. It takes extraordinary effort to access/read someone's email, akin to steaming open an envelope. Ergo, your assertion is wrong.

          Counterpoint: Wireshark [wireshark.org]. Reading someone's plaintext email with off-the-shelf hardware, for either ethernet or WiFi, does not take "extraordinary effort." It hardly takes effort at all. If you ever want to try it out, be warned: it'll scare you.

          In contrast, sniff

          • by AuMatar (183847)
            THat line will work absolutely perfectly- as soon as every form of electronic communication supports encryptes or unencrypted mode out of the box, defaults to encrypted, and requires the user to specificly set unencrypted.

            The vast majority of people are not technically inclined. They barely know what encryption is, much less know how to use it. Imposing a burden of technical knowledge on the masses is not acceptable.
          • by honkycat (249849)
            Effort doesn't need to be extraordinarily sophisticated to qualify as extraordinary effort. You don't often *accidentally* read someone else's email in the process of ordinary use of the internet. You have to make a special effort to do so. Consider the parent's physical example -- steaming open an envelope. This requires a bit of care and physical access, yet few would consider it exceptionally difficult. Still, we consider the envelope and mail process to provide sufficient security to give us the e
        • Except for the fact that you cannot read someone's email as a routine matter of simly handling it, as in a mail carrier. It takes extraordinary effort to access/read someone's email, akin to steaming open an envelope.

          Or, running a sniffer to troubleshoot a network issue? Which could have you, completely accidentally, with copies of hundreds of "private" emails. So are we going to have to get a warrant to fix our own networks, now? Or is it only the police that will need a warrant to fix their own?

      • by ahbi (796025) on Monday June 18, 2007 @04:49PM (#19557307) Journal
        Whatever the law is for telegraphs should be the law for emails.
        It is basically the same things 1s & 0s (long & short dashes) transmitted over copper wires (or fiber now a days) relayed by a machine or person (depending on the tech).
        And even when relayed by a machine the Admin of the machine can read any email on the server. Email passes through multiple servers, at least the sending SMTP and the receiving POP/IMAP machines. I have no control over my ISP's POP server or the Admin thereof.

        I assume there was no expectation of privacy in a telegraph and there should be none in an email. It would be nice, but it ain't how it works.

        And now for some commentary from a real lawyer.
        http://volokh.com/archives/archive_2007_06_17-2007 _06_23.shtml#1182181742 [volokh.com]

        [Orin Kerr, June 18, 2007 at 11:49am] Trackbacks
        Sixth Circuit Blockbuster on E-Mail Privacy: In an earlier blog post on a pending case in the Sixth Circuit, Warshak v. United States, I figured there was no way the court would get to the merits of the Fourth Amendment issue lurking in the case: there were no facts yet and no decided statutory law, and surely the panel wouldn't be so reckless as to presumptively strike down a federal statute in the absence of facts or law given the procedural problems with the case. I had a funny feeling things would turn out differently when I learned who was on the panel, though, and that funny feeling turned out to be justified: the panel just issued a blockbuster decision that tries to answer how the Fourth Amendment applies to e-mail (all without any facts, amazingly) based on arguments from amicus briefs that the government didn't address all in the context of an appeal from a preliminary injunction. Wow. More on the decision later today.

            UPDATE: Here's the key part of the opinion:

        [Start Quote]
                [W]e have little difficulty agreeing with the district court that individuals maintain a reasonable expectation of privacy in e-mails that are stored with, or sent or received through, a commercial ISP. The content of e-mail is something that the user "seeks to preserve as private," and therefore "may be constitutionally protected." Katz, 389 U.S. at 351. It goes without saying that like the telephone earlier in our history, e-mail is an ever-increasing mode of private communication, and protecting shared communications through this medium is as important to Fourth Amendment principles today as protecting telephone conversations has been in the past. See Katz, 389 U.S. at 352 ("To read the Constitution more narrowly is to ignore the vital role that the public telephone has come to play in private communication.")
        [End Quote]

        Notably, the court's Fourth Amendent analysis combines aspects of the probabilistic, private facts, positive law and policy model (the above-quoted section being from the policy model section).

        • by Chris Burke (6130) on Monday June 18, 2007 @05:18PM (#19557659) Homepage
          I assume there was no expectation of privacy in a telegraph and there should be none in an email. It would be nice, but it ain't how it works.

          Why do you assume that?

          Granted, by the nature of the telegraph, you had to have an operator on each end to transmit/transcribe your message. With the exception of that pair of people, why would anyone expect that their message is not private? Certainly with regards to law enforcement -- I would assume there was an expectation that the telegraph operator would not hand your missive directly over to a law enforcement officer unless that officer had a warrant, and similarly an expectation that the nobody including the police would tap the transmission line and listen in on your message.

          If there was a version of the telegraph which required no operators, then there would be no reason not to expect complete privacy.

          But why pick the telegraph which has an obvious privacy-related flaw when we also have the example of the telephone? This is more apt because it does not have the same flaw as the telegraph, and because these days the machinery for transmitting voice data and email data is the same. Also it serves a similar function in that it's intended as a person-to-person form of communication. Do we have an expectation of privacy in phone calls as a matter of law? Yes! So should we with e-mail? Yes!

          And you have that same "expectation of privacy" even if you are using an old-school easy-as-piss to overhear cordless phone. Just because it's easy to violate your privacy does not mean it is okay for people to do so. Just like when you send a postcard you have the same expectation. Sure, someone might read it, that's a practical reality. But as a legal reality neither police officers nor private detectives are allowed to pluck postcards from your mailbox and read them.

          Mail and phone both have expectations of privacy, why should not email?
          • by Tiro (19535)
            But telegraph communications are protected by statue just as telephone calls are.
          • by Pig Hogger (10379)

            But why pick the telegraph which has an obvious privacy-related flaw when we also have the example of the telephone?
            Did anyone else had a flash of the old Apple commercial where hundreds of people are trying to learn morse code, and then someone comes running in with a telephone...
      • by Vellmont (569020)

        Really people should have the same expectation of privacy in an email as they do with a postcard. None at all.
        It is clear text.

        Bzzt...

        My phone line isn't encrypted either, and in fact physically available for tapping to anyone in the building, yet I have a high degree of expectations of privacy.

        Before cell phones went digital, anyone with a television tuned to a UHF channel could listen to cell phone conversations, but yet there was still an expectation of privacy from government taps.

        You seem to think just
      • by hcdejong (561314)
        Really people should have the same expectation of privacy in an email as they do with a postcard. None at all.

        I encrypt my postcards, you insensitive clod!
    • Re: (Score:3, Informative)

      by Jeff DeMaagd (2015)
      It's just a shame that the right decision comes down on the side of the spammer.

      I think it's a dumb snake-oil product with a dumb ad campaign, but "spammer" is not the correct word to use as far as I know. Spam is not used to describe TV ads that help pay for what you are watching. The OED's definition is about bulk messaging over the Internet.
    • Re: (Score:2, Insightful)

      It's just a shame that the right decision comes down on the side of the spammer.

      Everyone deserves the same rights and treatment under the law.
      • Re:too bad (Score:5, Funny)

        by UbuntuDupe (970646) * on Monday June 18, 2007 @04:34PM (#19557151) Journal
        Everyone deserves the same rights and treatment under the law.

        I agree.

        Well, except for rich people. And pharmaceutical companies that spend more on advertising than research. AFAIK, they're first against the wall.

        But yeah, equal treatment for everyone else.
    • Password-protected (Score:3, Insightful)

      by bar-agent (698856)
      Even more so, any password-protected account should give an expectation of privacy. The only people seeing those things should be you, and whoever you've got the account with, for their own purposes only and they shouldn't give access to anyone else.

      That's the whole point of passwords! I'd say that's a pretty straightforward expectation.
    • Not too bad! (Score:2, Insightful)

      by FuzzyDaddy (584528)
      It's just a shame that the right decision comes down on the side of the spammer.

      This is often the case - think of all the free speech cases involving Nazis and white supremicists in this country. It has a good side - it reassures us in the rule of law. If these rights apply to an alleged spammer, then we can be assured that they apply to everyone.

      So hold up a beer for this guy, who has accidently helped further all of our rights. And let's hope the police get a proper search warrant and put him away fo

  • Great! (Score:5, Funny)

    by Colin Smith (2679) on Monday June 18, 2007 @04:20PM (#19556985)
    Now we don't have to encrypt our emails!

     
    • Since this case talked about the expectation of privacy, they likely mean a common person's expectation.

      However, if someone knew about the open nature of the SMTP / POP3 / IMAP protocols and didn't use encryption, I wonder if the courts would find that the smarter user did not have an expectation of privacy.

  • Patriot act (Score:5, Interesting)

    by CaptainPatent (1087643) on Monday June 18, 2007 @04:23PM (#19557021) Journal
    While this does not deal specifically with the patriot act, this will hopefully help set a precedent that a lot of the rights we "gave up" with respect to wiretapping in the patriot act will not be tolerated.
  • by Lurker2288 (995635) on Monday June 18, 2007 @04:27PM (#19557071)
    Boy, I'm glad that's settled. Now I can get back to livin' free and steppin' easy.
  • In a 6th circuit court decision today 4th amendment expectation of privacy rights were extended to email.
    Privacy rights are not the only things they extended. ...sorry.
  • I've long had this idea that someone should send national-security-related incriminating emails to a group of "co-conspirators". It would be something that the government would definitely want to stop if they knew about, like a planned assassination, but it would all be fake, yet look real enough. That would let you know if the government's already reading them.

    (You'd want to document this with several third-parties first, of course, in case you get arrested.)

    Anyone ever explored this?
    • Re: (Score:2, Informative)

      by Anonymous Coward
      Be careful: under some circumstances, threatening to assassinate someone is a crime in and of itself, even if you don't intend to carry it out.
    • When the president can declare you an 'enemy combatant' and strip you of your rights....I wouldn't be counting on third-parties to keep me off the waterboards in Gitmo! Yeah...not in the current political climate.
    • Re: (Score:3, Funny)

      by Dan Ost (415913)
      Robert Anton Wilson wrote a short little thing in his Schoedinger's Cat trilogy about stenciling "Cocaine Importers, LTD" or something similar on the side of a delivery van and seeing how the cops respond. It was amusing.
    • You can safely assume that they are already reading them; no need to incriminate yourself to prove that.
    • by ImaLamer (260199)
      Somewhat.

      I posted a bunch of messages to usenet, emailed them to myself and even posted a sample here that contained hate speech, random government acronyms (NSA to ATF to USDA), JFK, MLK, a mention of Aaron Burr, and random digits (binary lines, hex lines and a few decimal lines).

      Oh, and words like assassinate, explosion, what have you. More or less the message looked like jibberish, but had a somewhat bogus PGP signature (I really signed it, just with an alias e-mail and name).

      Nothing ever happened, but
      • by Pig Hogger (10379)
        I heard about someone who puts an extra custom header in his USENET posts which contains the string "when he was a kid, the president of the United Cigar Stores used to throw water bombs at anthills to kill time".
    • by Pig Hogger (10379)

      I've long had this idea that someone should send national-security-related incriminating emails to a group of "co-conspirators". It would be something that the government would definitely want to stop if they knew about, like a planned assassination, but it would all be fake, yet look real enough.

      Tell that to the two clowns who simulated a terrorist attack in Montréal, some months ago, and who are now rotting in jail, charged with the crime of simulating terrorism...

  • I mean, sure... it gives you leverage to make sure your privacy isn't infringed upon by government agencies, but don't you think it could create the expectation that internet communications services are _required_ at all times to encrypt communications, even when the sender might have wanted to use more open and readable formats (and possibly not necessarily agreed to be so open by one of the recipients)?
    • Re: (Score:3, Insightful)

      by DragonWriter (970822)

      I mean, sure... it gives you leverage to make sure your privacy isn't infringed upon by government agencies, but don't you think it could create the expectation that internet communications services are _required_ at all times to encrypt communications, even when the sender might have wanted to use more open and readable formats (and possibly not necessarily agreed to be so open by one of the recipients)?

      Did similar past decisions regarding public phones and postal mail compel telecoms and the USPS to encrp

  • It's about time (Score:3, Interesting)

    by TFGeditor (737839) on Monday June 18, 2007 @04:35PM (#19557159) Homepage
    "In a 6th circuit court decision [PDF] today 4th amendment expectation of privacy rights were extended to email."

    Finally, we are getting some rights restored/extended rather than taken/curtailed.

    • Re: (Score:3, Interesting)

      by spikedvodka (188722)
      What I want to know though is: How does this jive with AUPs that explicitly state "There is no expectation of Privacy"? and specifically, with respect to private employers, and public sector employers?

      Also, how does this work with State requirements that we (as a company) keep copies of everything sent over e-mail?
      • by Lockejaw (955650)
        I imagine they'll come up with something declaring employees to be acting agents of their employers when they send business-related emails.
      • by duranaki (776224)
        In order to avoid confusion, the U.S. postal service must now open, photocopy/archive, and reseal every snail mail correspondence. But other government agencies will still need a court order to read the photocopies.
        • by whoever57 (658626)

          In order to avoid confusion, the U.S. postal service must now open, photocopy/archive, and reseal every snail mail correspondence.
          I think that they do that already to my post; well, except for the resealing part.
      • by Knara (9377)

        It doesn't, because the 4th amendment protection against unreasonable search and seizure restricts government actions not the actions of private individuals.

        IANAL.

        • Hence the second part of the "how will this effect" question: public sector, where the employer is the government? (I.E. IRS, FBI, State government, public School districts, Municipal Employees, etc.)
    • http://www.uscourts.gov/courtlinks/ [uscourts.gov]
      The 6th Circuit Court encompasses Kentucky, Michigan, Ohio and Tennessee

      The other circuits may look at this decision as part of their deliberations,
      but it isn't binding anywhere except those four states.

      Let me know when it
      A) gets to the Supreme Court or
      B) becomes Federal Law
      then I'll get excited
      • Well, since I live in one of those four states, I'm pretty damn excited anyways
      • Re: (Score:3, Informative)

        by Knara (9377)
        IANAL, but I seem to recall that courts across the US tend to use federal appeals courts decisions in other circuits in their rulings, since a precedent is a precedent. I suspect there are a great many issues that have been effectively decided for all practical purposes on a nation-wide by having appellate courts issue a decision and then later being cited that never make it to the supreme court.
  • by Anonymous Coward on Monday June 18, 2007 @04:45PM (#19557267)
    The court's opinion is blatantly obvious to anyone on Slashdot:

    "In considering the factors for a preliminary injunction, the district court reasoned that e-mails held by an ISP were roughly analogous to sealed letters, in which the sender maintains an expectation of privacy. This privacy interest requires that law enforcement officials warrant, based on a showing of probable cause, as a prerequisite to a search of the e-mails."


    Yet the courts took 20 years to figure this out. People seem to accept it -- that's just 'the way it works' -- but it's a travesty, and an injustice to 20 years of defendants. The Judiciary is responsible for delivering justice, yet all they deliver is process. If their process doesn't work -- for 20 years -- to hell with justice for all the people that are screwed in the meantime; we'll get it right eventually. They're like the most incompetent, hide-bound business, delivering nothing profitable, committed not to outcomes but to long-established procedures.

    If I took 20 years to adjust to some change in IT and deliver on my responsibilities, I'd have been fired 19 years 6 months ago. There is no accountability for the Judiciary -- I suppose that's intended, to preserve its independence -- but what frustrates me most is that the Judiciary takes no responsibility on its own, and that people are blind to it and just accept it, like Windoze users who just accept whatever was given them.
    • Re: (Score:3, Insightful)

      by Chris Burke (6130)
      Well remember that the courts can only decide issues that are placed before them. If this issue hasn't come up before, then there would have been no chance for them to explicitly state that email also falls under the 4th Ammendment. I'm not sure that's true, but in my memory most of the cases involving email as evidence those emails were obtained through a warrant and thus in those cases at least no 4th Ammendment issue arose to be ruled on.

      You could call it a problem with the system that technically it i
    • Not only is this view wrong (for reasons that others have adequately pointed out), it's dangerous, because a quickly-moving justice system would rule without deliberation or thought, based primarily on whim, and with none of the stability afforded by the system as it is now. The only thing that's accomplished by weakening the judiciary is tyranny of the majority, or of a minority who momentary got majority support during the right month of the year. Not that there aren't judicial reforms to be sought out, b
  • My T-shirt (Score:5, Funny)

    by Nonillion (266505) on Monday June 18, 2007 @04:56PM (#19557379)
    So, I guess it won't be such a good idea to wear my i read your e-mail T-shirt at work anymore...
  • I mean this as a comment on the legal standard not just the good consequences of such a ruling. It's pretty clear that most people really do have an expectation of privacy in email they send from home (work is another matter). An average person would be both shocked and horrified to learn that someone else was reading their email and would feel it was an invasion of their privacy. Most certainly the average person does not have the same attitude toward email stored on their ISP's servers as they do to ot
  • A magistrate judge ordered me to turn over all email requested by the other side in a federal civil lawsuit. This included email to my parents and my wife which discussed my feelings about the case, possible legal strategy, family member's health, etc.

    I have come to understand that, in a civil case anyway, anything you document is discoverable (with the exception of communication between youself and an attorney and youself and an expert witness). I argued that the email was not relevant, but the courts are usually inclined to allow the other side to see it and decide for themselves. The other side got to pour over 500+ emails that have absolutely no relevant information.

    details are here:vilana financial [cgstock.com]

  • by PurifyYourMind (776223) on Monday June 18, 2007 @06:32PM (#19558465) Homepage
    I could be wrong, but I think the 4th amendment only covers the specific case of searches and seizures by the government. To construe it as an amendment protecting our privacy in general is wrong.
    • by Oswald (235719)
      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.

      There. No need to guess what it says, only what it means. In this case, I think "papers and effects" might cover email, given when the document was written.

  • Just another reminder to geeks with bucks, please donate to The EFF [eff.org] who filed am amicus brief on this subject. This group does a great job of educating these judges, and without them the government would likely stomp all over the constitution without opposition.
    • Just another reminder to geeks with bucks, please donate to The EFF who filed am amicus brief on this subject. This group does a great job of educating these judges, and without them the government would likely stomp all over the constitution without opposition.
      I second that e-motion.

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