US Wants Courts to OK Warrantless Email Snooping 476
Erris writes "The Register is reporting that the US government is seeking unprecedented access to private communications between citizens. 'On October 8, 2007, the United States Court of Appeals for the Sixth Circuit in Cincinnati granted the government's request for a full-panel hearing in United States v. Warshak case centering on the right of privacy for stored electronic communications. ... the position that the United States government is taking if accepted, may mean that the government can read anybody's email at any time without a warrant. The most distressing argument the government makes in the Warshak case is that the government need not follow the Fourth Amendment in reading emails sent by or through most commercial ISPs. The terms of service (TOS) of many ISPs permit those ISPs to monitor user activities to prevent fraud, enforce the TOS, or protect the ISP or others, or to comply with legal process. If you use an ISP and the ISP may monitor what you do, then you have waived any and all constitutional privacy rights in any communications or other use of the ISP.'"
"Land of the Free" (Score:4, Insightful)
Postcard/envelope analogy (Score:4, Insightful)
Re:"Think about it" (Score:5, Insightful)
"Think about it" is usually the final sentence after a list of "proofs" that present the point of the one arguing. "Obviously" is used whenever he does not have any facts to support his theory. No facts needed, it's "obvious" and if you don't agree, you can't even see the obvious, dumbass!
Doesn't matter anyway... (Score:2, Insightful)
Right.. (Score:5, Insightful)
PGP might not be dead (Score:3, Insightful)
"By the people ... for the people..." (Score:3, Insightful)
Is it me or is that difference not quite clear here? That an ISP snoops on its users is not a good thing, but considering that its customers are just the necessary evil to get the money for its owners, they're not their main concern. The people, on the other hand, should be the main concern of a government.
It's the governments only excuse to exist at all!
Re:Postcard/envelope analogy (Score:5, Insightful)
Re:"Think about it" (Score:1, Insightful)
If Mike Rasch's article is indicative of the quality of articles on SecurityFocus, then the followers of that site are dumber than the author himself.
Re:Postcard/envelope analogy (Score:2, Insightful)
Let's see you test this. Take your fingers and make nice clear prints on a postcard, then write a death threat to the president on it and send it from your neighborhood post office to the White House. Repeat this action once every month.
Please let us know what happens (find a Slashdot-enabled lawyer before you start the experiment, please).
Outrageous conclusion? (Score:5, Insightful)
1) Staged faked news conferences and failed to tell the real reporters
2) Cant decide whether waterboarding is torture
These people will do anything they are allowed to until they are told no and
sometimes even after they are told no.
There is a way around this, if a court says the ISP agreement is what creates
or does not create a reasonable expectation of privacy then the day after
the court rules as such then I will tell my ISP either they change their ISP
agreement to say that my emails are private and will only be disclosed upon a valid
court order or I will find a new ISP that will do so.
Re:Postcard/envelope analogy (Score:4, Insightful)
Re:"Land of the Free" (Score:4, Insightful)
Also, you can't reasonably expect any privacy in email unless you encrypt its contents.
Re:Postcard/envelope analogy (Score:5, Insightful)
In other words, the snagging point is the definition of "expectation of privacy" -- but the situation is really quite simple: The average user simply expects privacy, but the government is trying to force them to abandon that expectation, so they can then go and install ubiquitous e-mail surveillance without violating the letter of the US Constitution. The government is trying to win by arguing semantics, so what I find hardest to believe is that anyone is taking all this blatant skullduggery seriously. I've seen better weaseling from schoolkids trying to avoid homework assignments.
E-mail is electronic, so the message is NOT viewable in transit without making an effort to intercept and decode it, even if the encoding is just ASCII. It's not like mailing a postcard, it's like sending an electrically encoded text message over a packet-switched data network where the only expected viewing point is at the intended recipient's terminal; this is how the e-mail protocol was designed to work. Sure, a malicious party can read it because it's not encrypted, but someone can easily slice open a postal mail envelope and read the contents of that, too.
The bottom line is, since a non-trivial effort has to be made to read the contents, and since the service has always been presented as a "sealed letter", the average user is not unreasonable in expecting privacy.
Re:"Think about it" (Score:5, Insightful)
Sometimes, "think about it" is an invitation to test your brain and see if it's broken before they write you off as an idiot who really is.
Obviously.
Not so fast (Score:3, Insightful)
In the meantime I'll just be happy that while my ISP is in the US I don't use their email service. Good luck convincing the service I pay to use out of Norway to give up my email.
What? (Score:5, Insightful)
Re:What privacy? (Score:2, Insightful)
Second, I was really making a comment on the interpreting the 4th amendment in the digital age. One of the ways that privacy, though not necessarily 4th amendment protected privacy, is "violated" is by snooping. The question is, where does the 4th amendment kick in? In light of the fact that the Internet is truly public, are we really getting it all wrong with analogizing Internet communications like regular mail.... perhaps they are more like cell phones, where any third-rate jerk who spend $50 on some technology can snoop?
Supposed the government grabs all communications as they leave your ISP? Do they need a warrant for that? Is it even a protected 4th amendment interest? I'd like to think that it is, but I don't know if it really all that much matters what the Terms of Use of your ISP are. The real question is how we are going to overall define what class of communications e-mail and the like fall into. I'd hope that we would err on the side of caution and make the government work to have access, but I see the arguments on the other side as well, some of which (i.e., don't all criminals use PGP anyway?), you have already cited.
Its nuttin' but spam anyway... (Score:3, Insightful)
Re:Postcard/envelope analogy (Score:4, Insightful)
The next step... (Score:1, Insightful)
The next step in this line of thinking is to argue conveying *any* information to *anyone* waives expectation of privacy. After all, you told someone.
The next step is mere existence waives any privacy expectation.
Re:Foreign emails too? (Score:5, Insightful)
Re:"Land of the Free" (Score:5, Insightful)
Monitor Democratic e-mails? (Score:4, Insightful)
Here's the ironic side of this - the Democrats are pretty much in a lock to have the next White House, barring another extreme disaster that sends people running back to Big Brother again. All of these broad, sweeping changes for the power of the White House will only be partially in effect for Bush's term... and fully in effect for Obama or Clinton's term. The Democrats would like to thank the Republicans for giving them such broad power. (Not that I support either of them having it, mind you.)
They could and get a positive answer. (Score:4, Insightful)
If they did ask, I bet that most of the US population would just go along with it. Because, Civil Liberties is for "criminals to hide behind", "pinko hippies", "gays", "folks who don't want God anywhere", and any other issue that the ACLU and their sister organizations have taken up.
Why, law abiding citizens do not need Civil Rights!
This country and her Constitution is in trouble my friend.
Blatantly unconstitutional (Score:3, Insightful)
Re:Doesn't matter anyway... (Score:4, Insightful)
Postcard/envelope analogy difference (Score:3, Insightful)
Re:"Land of the Free" (Score:5, Insightful)
Yep... 20 mln citizens have already gone to labor camps and hundreds of thousands executed [wikipedia.org], while deliberately-induced starvation [wikipedia.org] is killing millions more on conquered lands. No private property can legally exist — all enterprises belong to the State (of Workers and Peasants). It is illegal for peasants to leave their village without the headmaster's Ok (he is the one issuing them passports), and for all others to leave the country. Those suspected of subversion are tried by secret courts — either for the actual subversion, or (in the later stages of the Cold War) for "drug dealing", "gun possession", or homosexuality [wikipedia.org]. It is illegal to own "xerox" machines and other "publishing" equipment.
Hot water is a luxury available in cities, and even the running cold water (where available) could be out for days and weeks at a time. Wait for for an apartment is counted in years (and decades), as is the wait for telephone connection. Cars are small, unreliable, polluting, expensive, but you can't get them anyway. Same is true of electronics and most other manufactured things.
Yes. America is not that different at all...
Patently false — the government is seeking access to one particular method of communication — unencrypted e-mails. Whether they get it or not, you are a fool, if you expected privacy of that to begin with...
Except the Register, right? Phew...
Where's the news on this? (Score:5, Insightful)
Re:"Land of the Free" (Score:5, Insightful)
Also, you can't reasonably expect any privacy in email unless you encrypt its contents.
On privacy, while it is possible to read an unencrypted e-mail, that is not the same as an invitation to do so. It is possible to read my documents in my locked file cabinet, it just requires access and a pull hammer. Does that mean that those can be reviewed by the government? My phone line can be tapped by pretty much anyone, but does that mean it is okay for everyone to do so?
I don't disagree, I think that encryption is a fine thing, and should be used more often. However, I do not believe that my right to privacy exists regardless of the technological possibilities to interfere with it.
Re:Postcard/envelope analogy (Score:4, Insightful)
Where's Bad Analogy Guy when you need him?
Re:"Think about it" (Score:4, Insightful)
Welcome (Score:2, Insightful)
Re:Postcard/envelope analogy (Score:3, Insightful)
Re:What? (Score:1, Insightful)
Controversial (Score:2, Insightful)
No Dissent. Evil Past and Worse Future. (Score:5, Insightful)
They can spy on Democrats, their own people and anyone's and that's why this is more important than firefly diatribes. Without privacy in communications anyone who would bother to stand up for your rights can be identified and punished. Targeting can start in school, before the victim understands the issues or can defend themselves. Anyone who would encourage or aid the dissenter can also be punished. What the current administration is asking for is a tool more complete than Orwell was able to imagine in a paper world.
Imagine, for example, that Martin Luther King Jr. [wikipedia.org] had been identified when he was a Morehouse College, instead of 1961. Do you think he would have been able to withstand such early and sustained attention as he suffered later [wikipedia.org]? As late as the 1980's some asshole decided to prove that King did not deserve his PhD [wikipedia.org]. If a smear campaign had been launched while King was at Morehouse, he would never have made it in to Boston or Crozer. Would it have been possible to recognize a pattern or would society have simply been robbed of a charismatic champion?
It's cases like King's that created the outrage that outlawed domestic spying. We should remember those foul deeds and start the pendulum swinging back towards privacy. What we find today may be worse than what we know about King because technology has made things so much easier to identify, smear and harass.
alternative? (Score:5, Insightful)
Only as long as it remains legal to encrypt your mail.
You Don't Understand At All. (Score:5, Insightful)
The general populous need to be more aware that plain email is more like a postcard than a message in a sealed envelope though.
"Reasonable expectation of privacy" arguments mask the true cost of tyranny and the public should object to all forms of domestic spying. The right emails do not just fall from the sky onto FBI agent desks so that criminals can be prosecuted. It costs money to read and sort email. It's outrageous to waste tax money on things like that because criminals know how to hide and the machinery will be abused for political purposes [slashdot.org]. One way to protect the public from that kind of waste and abuse is to demand government obtain search warrents for email snooping. This is what the fourth amendment is all about.
Re:Controversial (Score:3, Insightful)
So you're fine with the idea of being randomly stopped on the street and searched by the police, right? Empty your pockets, son, and pop the trunk. Why? Well if you have nothing to hide, you should have nothing to worry about...
Re:Blatantly unconstitutional (Score:3, Insightful)
Land of the free! (Score:1, Insightful)
lol, the word in the image for me is "wiretaps"
Re:Controversial (Score:3, Insightful)
On the topic at hand (e-mail), while I am aware that there are multiple points in email transmission that can provide an opportunity for someone to see the contents of my mail, I do not, have not, and indeed quite possibly can not, waive my right to be protected from government surveillance without a warrant.
My wife knows my login password for our home computer. Does that mean that I have relinquished my right to keep the government from logging in to my computer to see my files?
Re:No Dissent. Evil Past and Worse Future. (Score:3, Insightful)
Re:What privacy? (Score:5, Insightful)
BZZZT. Once again this fallacy rears its head.
The U.S. Constitution is NOT a positive enumeration of citizens' rights. You have a right to do everything except what is specifically forbidden (by laws that we consent to live under). In addition, the Constitution isn't even about you, Mr. Citizen. The Constitution is about what We the People will permit government to do and not do. In other words, we (the people) already have all the rights in the universe*. A few of those we will consent to give for the purpose of living more-or-less harmoniously, and a few of those we will permit to the government. All else we reserve for ourselves and for the individual States in which we consent to live.
* So yes, I do have a Constitutional right to broadband Internet access.
Re:What privacy? (Score:3, Insightful)
Re:"Think about it" (Score:2, Insightful)
I don't know where people get this notion that if it's possible for the government to do something, they have a right to do it. If I don't lock my door when I leave the house I'm not implicitly inviting the police into my house and surrendering my Fourth Amendment rights. If I make a call to my mother on the POTS network they can't simply listen in (recent fascist precedents notwithstanding) just because our voices are unencrypted.
There is a reasonable expectation of privacy that still applies to plaintext communications. Yes it's possible to do packet inspection on my emails, hold my mail up to the light, etc. and that might be relevant if we were talking about criminals doing these things. Not the government.
I'm getting sick of writing this post over and over and over again. If you had told me ten years ago that I would even have to make these arguments in my lifetime, I would have laughed in your face. Hopefully in 2008 someone sane will enter the White House, and we can look back on these threads and conversations and laugh. Unless this idiot holes himself up there and tries to pull off a Musharraf of his own which wouldn't surprise me at this point.
Re:"Think about it" (Score:3, Insightful)
To be clear, I'm dead set against the government reading my email, encrypted or not. All I was trying to say is that the phrase "reasonable expectation of privacy," on which the legal test is currently based, is a shitty test, as what a reasonable person would "expect" the government to do is to violate you in any manner they can get away with.
In other words, this is an unconstitutional policy that is wrong, and that is exactly what I expect from my government and my ISP. I consider it reasonable of me to expect that, as they have demonstrated their disregard for civil liberties on numerous occasions.
In that sense, it is not reasonable to expect your email to be kept private -- it is still, however, reasonable to demand that it shouldbe kept private.
I was lamenting the present state of affairs, not making a case for them.
Re:What privacy? (Score:3, Insightful)
Once an ISP begins providing the government information (or other services) without a warrant through some deal with the government, they become an agent of the government. At that point they are subject to upholding the Constitution. If this were not so, then government could hire any agency - Blackwater - to do anything they'd like - police US citizens - and that agency would have no obligation under the Constitution to not abuse our rights. It doesn't take a rocket scientisi to figure out where that would go, and it doesn't take one to figure out the intent of the 4th Amendment (or the rest of the Bill of Rights and the Constitution).
Though with the abuses we've seen in the past 8 years, maybe it does?
PGA
Re:"Think about it" (Score:4, Insightful)
I have a strong suspicion that the next President, whoever she may be, will be briefed on all this stuff and will determine either that 1) the real threat is actually so great that the surveillance programs should continue, or 2) the conduct of the surveillance programs is actually more in keeping with accepted American principles than is commonly believed among the public. I predict that for at least the duration of the next presidential term, we will not hear of any surveillance program being shut down by order of the President.
Sad but true (Score:1, Insightful)
The next president will be slow to change anything laid out by this current administration, no matter what the public wants and how anti-American / moronic said law / policy is. This is the current problem with the democratic congress. People voted overwhelmingly for "change" with this past election but what really had changed? Arguably nothing at all.
Congress and the next president - democrat or republican - despite their belief that the current administrations policies are un-American, will be afraid of appearing weak and won't do a damn thing.
Re:Monitor Democratic e-mails? (Score:3, Insightful)
Do you really believe that? I think it is MUCH more up in the air at this moment. I mean, congress is at an all time low. The Dems got in, and pretty much have failed to do ANYTHING they said they were gonna do if voted in over the Reps. War? Still going on. Privacy matters? Nah...they gave in on the recent chance to put FISA back into effect in a manner positive towards the citizens of the US. Immigration? Nope...nothing on that front.
So, I'd say no one is happy with congress...what are they, like 23% or so favorable rating?
And the Dems seem to have Hillary as the front runner. Do you know how many people in the US would rather vote in a bag of potato chips to the office of president, rather than her? I'm one of them.
I wish the Dems could get a reasonable candidate....I think Biden really has the clearest head on his shoulders on their side, but, he's too "boring" for the masses unfortunately. The Reps haven't really put out anyone that garners excitment or much merit.
All the front runners are just doing and saying anything to get in....heck, the ones I actually respect the most are Kucinich, and Paul on either side...both are WAY too far out on either end, but, I respect the fact they lay it out there as to what they believe, they don't flip flop, and they don't evade questions in fear they might offend some niche special interest.
Right now, IMHO...two of the 'best' candidates that would garner my attention and seem the most realistic, are Biden and Huckabee, for the Dems and Reps respectively. But, I don't think they have a chance....money, spin, and complete lack or any kind of 'soul' seem to be the factors that get one into the white house these days.
But, back to the point, no with what I mentioned at first...I don't think the Dems. are a shoe-in for either the executive office, nor large majority in congress.
Re:"Think about it" (Score:3, Insightful)
I assume the implication here is that the threat is much greater than we, the people, know, and that the surveillance has been more successful at stopping the threat than we know. Well that would be rather odd given that Bush's PR team takes every possible opportunity to play up the threats and their successes, rarely even waiting long enough to figure out whether their PR fluff will hold up once the facts are brought in court. If there was such a great threat, and we were so successful at stopping it, I'd think they could do better than half-assed prosecutions against people who are at best tangentially related to al Qaeda and which end up mostly falling apart as examples of how much we need them.
2) the conduct of the surveillance programs is actually more in keeping with accepted American principles than is commonly believed among the public.
If their conduct is "in keeping with accepted American principles", then why do they keep trying to acquire -- or exercise and justify post-facto -- extra-Constitutional powers? Unless the American Principles you're talking about are "apathy" and "a willingness to abandon their freedom at the first sign of danger", I'd say trying to weasel out of the 4th Amendment is not in any way, shape, and form "in keeping with American principles". Your suggestion that despite this public appearance of complete disregard for the Constitution, behind closed doors it's actually a program very respectful of American's rights, and that they're keeping this a secret to be rather hard to take.
Really. The government is clearly desperate for us to believe that the threat is great, they are the only ones who can save us, and that in doing so they are still protecting our rights. It's kind of silly to think that these things are true but nevertheless the government cannot -- not won't, can't, because they are clearly trying desperately to -- show these things to be true.
But then again, I was around when they were desperately trying to prove that Iraq had WMD and would jump on anything and everything they could that could support that idea, even if it fell apart after further investigation (Trailers of Mass Destruction, anyone?) This "take it on faith that the spooks know everything and just can't show us how awesome they are" thing is a horse that won't run anymore.
I predict that for at least the duration of the next presidential term, we will not hear of any surveillance program being shut down by order of the President
I agree, but not for any of the reasons you mention. The fact is that whoever takes up the mantle of President next is most likely going to be just as hungry for power as the current President. First sign: They want to be President. They don't actually mind Bush's huge power grab for the executive branch, because they're hoping that they will be the next ones to benefit. This is why the opposing party's response to these things is mock outrage and zero actual action.
Then again I lost my naivete on the "everything will be great once the other guys get power!" thing even before I lost it about the "oh don't worry your government has everything under control -- despite all appearances" thing.
Re:"Think about it" (Score:5, Insightful)
Considerably more germane to how the US is supposed to work than a religious quote, the constitution has this to say:
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.
Notice how a warrant has to be issued describing the "place" to be searched. The beginning of the amendment specifies "houses", but the rest is more general - the implication is that your shed, your place of business, someone else's coffee kiosk or bench or "mailbox of letters" or "container of packets", all are protected against unreasonable search. What is unreasonable in this context? It's right there, just read it: "right of the people to be secure" - that's unreasonable to violate. If you're not secure, you've been violated unless (a) they have probable cause and (b) they have a warrant and that warrant is supported by oath or affirmation.
With regard to communication modalities, at the time, what they had for remote communications was basically paper. Please note the explicit constitutional reference to the security of papers. You could write something down and send it elsewhere. This is where the idea that your mail should be secure comes from. Well, today, we have other mechanisms. Do you think that in ANY rational world, if the authors of the first amendment knew that you could send messages over wires or through the air, that they would have said, "Oh, well, in that case, you have no right to be secure? You can't base such an argument on how "easy" it is to read such communications, because there's nothing as easy to read as the mail is.
Those authors weren't trying to enumerate the "only" places you were to be secure, they were trying to say you should be secure PERIOD unless... oath, probable cause, warrant. I read the "persons, houses, papers and effects" as a general set of guidelines that is broadly inclusive; that reading is particularly supported by "effects", because that word is about as non-explicit as you can get in the language of the day.
Privacy is the social boundary that the citizens agree shall not be crossed. Closed doors shall be knocked upon; locked or not. Skirts shall not be looked up, short or long. Envelopes shall not be opened, unless addressed to you. Diaries shall not be read except by explicit permission from the author. These things are all important cornerstones of how society works. Not a one of them carries the addendum "unless it is easy" because it is obvious to each and every one of us that the existence of such boundaries is what makes life as an individual reasonable.
To the extent that the government argues that "because it can", it should be allowed to, we are faced with an intrusion that is both antisocial and constitutionally wrongheaded, as well as, I would argue, constitutionally anticipated and explicitly forbidden.