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Court Refuses To Rule On ECPA Warrantless E-mail Searches 122

Posted by Soulskill
from the not-yet-ripe dept.
utkalum writes "After Steven Warshak's indictment and conviction on charges of mail and wire fraud, money laundering and other federal charges, he learned that key evidence in the case was obtained by the government under a 1986 law permitting no-warrant searches of email communications stored for longer than 180 days. He also learned that, despite the Electronic Communication Privacy Act's requirement that such searches be disclosed to the suspect no more than 90 days after they were commenced, the Government simply couldn't be bothered to comply. Now, the US Court of Appeals for the Sixth Circuit has refused (9-5) to hear Warshak's constitutional challenge to the Act (PDF), claiming that the question raised is 'not yet ripe' for adjudication. It's worth noting that the court also vacated an earlier injunction against using that act to read the e-mail of other people in Warshak's district. Read on for an excerpt from the ruling.
'Not only do "we have no idea whether or when" such a search will occur but we also "have no idea" what e-mail accounts, or what types of e-mail accounts, the government might investigate ... That uncertainty looms large in a debate about the expectations of privacy in e-mail accounts. The underlying merits issue in the case is this: In permitting the government to search e-mails based on "reasonable grounds," is 2703(d) consistent with the Fourth Amendment, which generally requires "probable cause" and a warrant in the context of searches of individuals, homes and, perhaps most analogously, posted mail? The answer to that question will turn in part on the expectations of privacy that computer users have in their e-mails — an inquiry that may well shift over time, that assuredly shifts from internet-service agreement to internet-service agreement and that requires considerable knowledge about everevolving technologies.'
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Court Refuses To Rule On ECPA Warrantless E-mail Searches

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  • Bush told me.... (Score:5, Insightful)

    by Roskolnikov (68772) on Friday July 11, 2008 @07:06PM (#24159437)

    This doesn't apply at the White House, apparently they don't archive their email.....or at least you can't prove that they may or may not......

  • Re:Bush told me... (Score:5, Insightful)

    by I cant believe its n (1103137) on Friday July 11, 2008 @07:08PM (#24159459) Journal
    Well, I hear torture is ok.
  • by shanen (462549) on Friday July 11, 2008 @07:12PM (#24159499) Homepage Journal

    Unless we own our personal information, we will have no privacy and no freedom. If I know *EVERYTHING* about you and have a few henchmen, then I can surely control you and eliminate your freedom. No one is perfect. You must have some weakness that can be approached. Some way to be bribed? Or surely you've made some embarrassing mistakes that could be leveraged against you? What's your hook? Gambling? Booze? Whatever it is, if I know enough about you, then I can eventually make you do whatever I want.

    Is there a solution? Yes. We must own our personal data. It cannot belong to the companies to buy and sell like oil futures and shares in gold mines. The strongest form of ownership is possession--the famous 9 points of the law. Once you have possession, then it is up to the other side to show they have some claim on your personal property (in the form of information in this case).

    If any company wants to store some information about me, they should be required to store it on *MY* computer. They can sign it so that I can't tamper with it. That's a trivial aspect. However, whenever they want to *USE* my information, they should be required to tell me why. This can mostly be automated in the form of my personal privacy preferences, and for most queries there is no reason I should stop them--but I should always be free to change my mind.

    (I only see one other alternative that preserves any personal freedom. That would be the total exposure of everyone's personal information. It would be a kind of war, but at least all of us could be on a kind of equal footing. Yet however much I would like to know the full truth about Dubya Bush, I don't think that's going to happen.)

  • Sorry dude (Score:3, Insightful)

    by NaCh0 (6124) on Friday July 11, 2008 @07:15PM (#24159529)

    You're guilty and there is no way out of it on a technicality.

    The only concern for the rest of us is that we have so many damn laws on the books that many of them are starting to conflict.

  • by hguorbray (967940) on Friday July 11, 2008 @07:15PM (#24159531)

    this will further erode citizen respect for the rule of law

    Not to mention respect for the courts and gubmint

      -which I imagine is already pretty low given the current slide towards a fascist corporate oligarchy (I know that's a little redundant)

    -I'm just sayin'

  • by Anonymous Coward on Friday July 11, 2008 @07:23PM (#24159597)

    What has changed since RFC 1123's [ietf.org] clarifications of SMTP?

    There really should be no expectation of privacy in e-mail. I've been hearing since at least 1989 that e-mailing sensitive information is about as secure as writing it on a postcard--and I never even used e-mail until 1998! It's no more private today than it ever was.

    If you want to send evidence of your criminal activity by e-mail and keep it secure, learn to use encryption. Or better yet, don't, and get convicted and sentenced. Please.

    I believe in the 4th Amendment, but I really don't think it applies here.

  • Re:Bush told me... (Score:5, Insightful)

    by Nimey (114278) on Friday July 11, 2008 @07:29PM (#24159645) Homepage Journal

    Goddamnit, that's not funny. That's depressing.

  • by EdIII (1114411) * on Friday July 11, 2008 @07:45PM (#24159783)

    I am not sure I agree about "ripe". I am concerned about warrantless searches. I think there has to be a position on that, and an absolute one. The government absolutely cannot conduct any search in meat-space or cyberspace without a warrant from a Judge, who is a member of the Judicial branch of government.

    The fact that the government did not feel it had to comply with its own 90 day rule just shows how arrogant and "above the law" they feel that they are.

    In any case, if this was any more "ripe" we could get drunk of it. Even if the guy is truly guilty, the government must follow the law at ALL times. Letting the guy go and sanctioning those involved is the only way to stop those in government from getting out of control.

    So I respect what you said, which is quite insightful, but I have to disagree. The court should hear the argument.

  • my position is: why does anyone expect communications going out on an open wire to be safe from snooping eyes? or even more absurd: why does anyone trust the government to ensure this illusion of privacy?

    if you have anything of secrecy, encrypt it, or keep it off the net

    i'm not excusing the governments behavior, but what i am saying is that the entire subject matter of privacy on the internet is absurd. at every node someone can snoop, not just the government. isps, criminal interests, corporate interests, just plain random goofballs

    its NOT like the government coming into your home and ramsacking your stuff behind a locked door. its you piling your stuff out in the middle of main street and expecting the local police to ensure no one looks at it or takes it, and then crying bloody murder when a cop looks at it. you put it out there, why do you expect privacy? i don't get it, i never understood why this subject matter works people up into such a lather

    to me, as soon as i hit send in my email box, if i haven't encrypted it, i EXPECT it to be seen by someone else

    its not like i've cynically given up on government, its rather that i recognize the technology is not securable, regardless of whether the government ensists on absolute privacy in electronic communications or is a fascist state who insists on looking at your every word. either way, i don't see how the technology of the internet confirms a position of privacy. its just better to assume someone else is going to see it, right?

    so i'm either totally crazy or way ahead of the curve, i don't know

    everyone gets so emotional about this issue, and i just don't understand the panic and hysteria over losing a protection that never existed in the first place, or ever could possibly exist, regardless of the law being ultrafascist or ultraprotectionist

  • Re:Bush told me... (Score:2, Insightful)

    by AllIGotWasThisNick (1309495) on Friday July 11, 2008 @08:03PM (#24159933)

    Fortunately, I'm the only person capable of coming up with such bullshit.

    You seem to have yourself confused with this guy [wikipedia.org].

  • by Null Nihils (965047) on Friday July 11, 2008 @08:06PM (#24159959) Journal

    There really should be no expectation of privacy in e-mail.

    Who are you to decide that? Like I said in a post on a similar topic [slashdot.org]:

    "...the canonical user interface icon for e-mail is... a sealed envelope. Even ISPs will present their e-mail services with such an image.

    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.

    ... 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."

  • by ee_smajors (1157317) on Friday July 11, 2008 @08:08PM (#24159981)

    The Constitution is very plain on our rights and who exactly is the boss in this country. The trumped up (or even real issues) that members of the government are using to generate fear and exceptions to our true law will come home to roost. They do us all harm in that they are succeeding in taking freedoms that Bin-Laden could not. Our current misadventure in Iraq, although certainly driven more by pandering to corporate greed, is being justified by hyping fear with religious overtones that to outsider smack of 'Crusade'. We as a people must learn to rise above such manufactured motivations and transparent pettiness and remain true to our core beliefs as stated in our Declaration of Independence. Our government should be run using the spirit of the Declaration as a guide, provable facts as motivation, and the strict process and rules laid down for governance in the Constitution to guarantee us each the opportunity for life liberty and the pursuit of happiness.

    Elected officials and career bureaucrats should especially keep in mind that in addition to the rights and protections specifically granted the people in the Bill of Rights, the 10th Amendment grants a very few powers to the federal government, a few more to the states, and by default, the remainder to the individual. Usurping our constitutional rights is not appreciated and will eventually lead to dire consequences...

    Perhaps everyone should reread the Declaration of Independence http://www.ushistory.org/Declaration/document/index.htm [ushistory.org] A group of very smart fellows wrote it! .... Way smarter and more egalitarian than any of our present day politicians!

    What we need is a true Patriot (and by patriot, I mean someone like George Washington .... not the Orwellian, doublespeak, PC corruption of the term 'patriot' foist upon us by Bush, Clinton, Nixon and others who have clearly sullied their offices). These guys richly deserve the full measure of constitutional means of trial for high crimes and treason for their transgressions against "We the People".

    ... A public gallows for some of these miscreants would go very far in raising the opinion of the world of what true American Patriots stand for and will put up with. Such action would most assuredly make clear the expected duty to public office seekers. "Don't Tread on Me" was a common slogan on flags in 1775-1776! ___ Perhaps we should start waving these flags at all campaign speeches and demonstrations in great enough numbers so it starts to sink in...

    "... Hey, you a**holes belong to "We the People" ... we pay you, we have set up the rules... follow them!

    _ denial of Habeas Corpus

    _ unwarranted search and seizure

    _ use of federal troops against the citizens

    ...please! ... or does your neck need stretching?"

    We expect and deserve true patriots in all our government offices!

    The supreme court got the 2nd amendment thing right... perhaps they will get this one right too.

  • by kaaona (252061) on Friday July 11, 2008 @08:31PM (#24160171)

    I freely admit to being a Constitutional junkie, but it seems to me that Steven Warshak's lawyers are grasping at shrinking straws. Their client is eminently, if not braggardly guilty of the crimes he was charged with. There was no statutory misconduct on the part of police or prosecutors in this case. No amount of legal Enzyte will raise (erect?) any reasonable doubt about his guilt. I say send him to jail, confiscate his ill-gotten gains, redistribute them to his victims, and move on.

    There are far more ominous Constitutional issues being contested today than the legal pimpings of this huckster's lawyers.

  • by ColdWetDog (752185) * on Friday July 11, 2008 @08:38PM (#24160209) Homepage

    If any company wants to store some information about me, they should be required to store it on *MY* computer.

    OK, you keep your info on *YOUR* computer. I ask for it politely and you say, "OK" - I get some.

    Now, it's on *MY* computer. And the computer of anyone I give the information to.

    So, once the information is out there, it's out there. The only thing you can do is enforce laws that deal with information breaches and enforce them quickly and routinely. Unfortunately, that's exactly what's not happening here. If you really don't want the information out there, you don't give anyone your SSN, Visa card (in fact you don't have one), phone number (in fact, you don't have one), credit history (in fact, you don't have one).

    So you live in a tent or the YMCA. That may be OK with you, but I would submit it's not going to fly with the populace at large.

  • by steveaustin1971 (1094329) on Friday July 11, 2008 @08:47PM (#24160285)
    You have only the rights they say you have. Period.
  • Welcome to the USA (Score:1, Insightful)

    by Anonymous Coward on Friday July 11, 2008 @08:51PM (#24160331)

    Meanwhile this guy is in the slammer after the Feds violated his rights AND didn't even comply with what few limitations were imposed on an unconstitutional law. Just great, maybe when he's old and grey they'll pull their heads out their asses and fix it. The conviction should have been tossed as a matter of routine and if these judges weren't corrupt and actually upheld the law it would have been. If you're expecting justice in the USA forget about it. It is no longer a nation of laws, especially w.r.t. the government abusing your rights.

    I don't have much sympathy for this guy, he's a criminal, but these judges make me want to puke. Uphold the constitution you jackasses!

    The NSA hoovers up EVERYTHING and that can be searched at will now and the court won't even look at it if they do and don't even tell you about it within the period specified by law. Jesus, this IS a police state, and you watched it happen live.

  • Re:Sorry dude (Score:5, Insightful)

    by mabhatter654 (561290) on Friday July 11, 2008 @11:23PM (#24161413)

    the other side BROKE THE LAW. How are THEY getting punished? The only remedy a defendant has is to try to get the case thrown out. The court has no remedy to sit the lawyers that chose to break the rules in jail next to him. The prosecution obviously won't arrest it's own people for breaking the law and this is where the legal system has broken down in the last 40 years or so. There is no court remedy for abuses unless the "prosecution" chooses to file the charges... that's highly unfair and not "justice".

    I'm not saying this guy shouldn't go to jail, but according to the facts of the case there should be a lawyer in jail next to him.

  • by aoeu (532208) on Friday July 11, 2008 @11:46PM (#24161573)

    I use yahoo and windows. And yes I expect them to keep MY mail.
    MY MAIL.
    Of course I think my mail should be private.
    Sadly,

  • translation (Score:2, Insightful)

    by moxley (895517) on Saturday July 12, 2008 @08:50AM (#24163671)

    SO basically what they're saying is: "We're not going to give you due process or follow the law (which we have sworn to uphold) because we know what the government did was wrong and illegal and we know you're right and we would have to throw this case out, and we want to wait until it gets made "retroactively legal" (which is unconstitutional) or the system deteriorates further until it won't even matter, and we can't risk having those in power be angry with us."

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