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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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  • by packeteer (566398) <packeteer.subdimension@com> on Friday July 11, 2008 @06:02PM (#24159401)

    Its ok to break the law as long as your catching a bad guy right?

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

      by I cant believe its n (1103137) on Friday July 11, 2008 @06:08PM (#24159459) Journal
      Well, I hear torture is ok.
      • Not only that but if they cannot find the more than 180 day email to prove their case, they can make some email files up. Not like a judge or jury knows the difference between real email and faked email or real documents and faked documents. I used to work for a law firm that had a program that allowed them to make documents or email say whatever they wanted them to say as evidence and nobody ever was the wiser. That is how they got out of that 1998 FBI investigation of them for fraud as they pinned it all

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

      by Nimey (114278) on Friday July 11, 2008 @06:29PM (#24159645) Homepage Journal

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

      • Re: (Score:3, Funny)

        by devnullkac (223246)

        Sorry, no +1, Depressing moderation available that I know of.

      • by Adambomb (118938)

        Thats the funny thing about Funny.

        Dictionary.com (v 1.1)
        funny
        1. providing fun; causing amusement or laughter; amusing; comical: a funny remark; a funny person.
        2. attempting to amuse; facetious: Did you really mean that or were you just being funny?
        3. warranting suspicion; deceitful; underhanded: We thought there was something funny about those extra charges.
        4. Informal. insolent; impertinent: Don't get funny with me, young man!
        5. curious; strange; peculiar; odd: Her speech has a funny twang.
        -noun 6. Informa

    • by El Jynx (548908)
      From a temporal perspective, there is no law because such people ignore them, cover them up or dance around them. Hence, one could argue that because Bush COULD, somewhere in the future, declare all past laws void all the way back through time, deftly saving his own ass and setting himself up as eternal tyrant. Fortunately, I'm the only person capable of coming up with such bullshit.
      • Re: (Score:2, Insightful)

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

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

      • Re: (Score:2, Troll)

        by Orion Blastar (457579)

        Yeah you and all of the other 911 conspiracy theorists. The only thing you forgot to mention was that the government did 911, and Bush and others are all members of the New World Order that made the Constitution and all other laws null and void. Also that McCain or Obama will gladly serve as Bush's third term in office because they are secretly controlled by the NWO as well.

        Don't give yourself too much credit, the Internet is full of people who really are capable of coming up with such bullshit. Just that b

        • First, *whoosh*.

          Also, this. [wikipedia.org]

          • Re: (Score:1, Troll)

            by Orion Blastar (457579)

            First, "Wrong!"

            Also, this. [thebestpag...iverse.net]

        • by mpe (36238)
          Yeah you and all of the other 911 conspiracy theorists. The only thing you forgot to mention was that the government did 911,

          "Al Quada did it" is just as much a conspiracy theory as "the (unspecified) government did it". (With the complication that these may turn out to be the same entity by different names. As was the case with the "Gaza branch" of Al Quada.)
          It's just not really credible to have a multiple hijack without a conspiracy. It's more interesting if someone tries to fit the facts around a theor
  • Bush told me.... (Score:5, Insightful)

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

    • Plausible deniability
    • That was the same way the Clinton administration ran things. All email was deleted and record retention got rid of memos and documents.

      Does the name Sandy Berger [worldnetdaily.com] ring a bell?

      • Re: (Score:2, Informative)

        by mOdQuArK! (87332)

        Using the Wing Nut Daily as a source doesn't help your argument any, but thanks for making your neocon shill credentials so clear.

        I will use a similarly biased web site (although it has a slightly better truthiness reputation) to rebut your claim: thinkprogress.org [thinkprogress.org]

        Here [washingtonpost.com] is another article about the Sandy Berger incident, from a slightly more reputable news source. Note how right wing propagandists like to say that Berger "stole" or "removed" classified documents from the Archives, when he actually took hom

        • I could use the same argument that the liberal biased web site is pure propaganda that downplays the incident in that he took home copies and deserves a slap on the wrist for breaking federal law.

          The New York Times [nytimes.com] covers it that he "removed the classified material inadvertently".

          I'll cite Wikipedia On Sandy Berger [wikipedia.org] "In April 2005, Berger pled guilty to a misdemeanor charge of unauthorized removal and retention of classified material from the National Archives in Washington. According to the lead prosecutor

    • except there is a "go to jail" law for NOT archiving their email. By not having provable record trails they are in violation of the law as much as if they hid evidence after the fact.

    • no, they can't recall if they saved it.
  • Is it like one of those cheeses they leave in a cave for a decade? Or a fine liquor that ages for half a century?
    • by elemnt14 (1319289)
      Well, if its liquor it is definitely not a "fine" grade, probably opposite. If its cheese, then it probably is going to be one of the more foul smelling ones. I personally think its the aging process where we get rotten tomatoes.
      • Re: (Score:1, Funny)

        by ksd1337 (1029386)
        Windows has "ripened" for over 30 years, and now we have something called Vista. And it's definitely foul-smelling.
    • by rubycodez (864176)

      how about "ripened as in a dead skunk under the front porch in July"?

      • by hairyfeet (841228)
        More like the opossum that crawled into your attic and died. Believe me,if you have ever smelled a dead opossum then dead skunk is like Chanel Number 5 in comparison. And with the humidity in AR they tend to stew for awhile before the stench waffles down. But as always this is my 02c,YMMV
  • by shanen (462549) on Friday July 11, 2008 @06:12PM (#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.)

    • Re: (Score:3, Insightful)

      by ColdWetDog (752185) *

      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

      • by shanen (462549)

        Before I permitted you to copy my personal information, I asked you why. That's a fuzzy big question. For example, if you said because you have asked me to help approve a loan application, then my system is going to respond with a whole string of questions. For example, you're going to have to prove who you are, who you represent, and provide a confirmation link to the lean application you claim to be talking about. In my own personal privacy policy, for sensitive financial information I might well include

    • Re: (Score:2, Insightful)

      You have only the rights they say you have. Period.
    • The problem is the people.

      I like gambling, I like booze. I vote, often doing all three at once!

      But if I tell people the truth about my multifaceted personality, they wouldn't vote for me (because I would tell them things they don't want to hear).

      So you get "politicians" instead. They get to decide what the rules are, and they are all pandering to "the people". Almost by definition you get liars to "represent" you. The actions of liars and idiots are almost indistinguishable, so I guess there is some ju

      • by jez9999 (618189)

        If we had BOTH compulsory voting, AND a minimum qualification-to-vote test, we might be better off.

        Not forgetting instant runoff voting when voting for one or a few people (ie. president), and proportional representation plurality voting when voting for a group of people (ie. senate, representatives).

        • by sumdumass (711423)

          We don't need instant runoff voting because we have the electoral system.

          It doesn't matter if someone gets more votes the second time around, they just need to get enough to take enough electoral votes.

      • by mpe (36238)
        But if I tell people the truth about my multifaceted personality, they wouldn't vote for me (because I would tell them things they don't want to hear).

        Assuming you could actually stand in the first place...

        So you get "politicians" instead. They get to decide what the rules are, and they are all pandering to "the people". Almost by definition you get liars to "represent" you.

        An effective "con artist" is always likely to have an advantage in a popular vote.

        The actions of liars and idiots are almost i
    • by jez9999 (618189)

      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.

      I have no hook. I'm a devout Christian living in the US Midwest, who has a husband, 2 children (born after wedlock), and a couple of SUVs. I go to church every Sunday, think only clean thoughts, and have missionary-style sex only. I never looked at porn, and decry all the evil criminals and porno people out there. I'm a loyal Republican voter, and a proud US citizen. Our wars

      • by shanen (462549)

        You didn't tell me enough about yourself--but I know you're just faking it anyway. In fact, it doesn't have to be a real flaw. For example, maybe you exchanged some email with a boyfriend in high school. It wasn't anything serious, but it sounds a little embarrassing. Let's use that as leverage to get you to do a little favor at the office, say a list of names just so we won't embarrass you with the email...

        Oh wait. Now it turns out that you've committed a felony. Ignorance of the law is no excuse. Our next

      • by sumdumass (711423)

        I have no hook. I'm a devout Christian living in the US Midwest, who has a husband, 2 children (born after wedlock), and a couple of SUVs. I go to church every Sunday, think only clean thoughts, and have missionary-style sex only. I never looked at porn, and decry all the evil criminals and porno people out there. I'm a loyal Republican voter, and a proud US citizen. Our wars around the world are fully justified, and out government doesn't lie to us (much). I'm in support of the death penalty. I don't drin

    • I would be inclined to agree with you, but isn't what you describe just another form of Imaginary Property?

      I wish it could be true, what you say--but I just don't think it's realistic.
    • by mazarin5 (309432)

      Do you love anonymously slashing other people? You, too, can be a SlashDot moderator. No, thanks, and stop asking me.

      Just go to your preferences [slashdot.org] and uncheck "Willing to Moderate."

      • by shanen (462549)

        Thanks. I never knew about that option. The moderation system on /. is just TOO screwed up to bother with. I think it's because of the anonymity, but the dimensional reduction doesn't help, either...

  • 'ripeness' is valid (Score:5, Informative)

    by Red Flayer (890720) on Friday July 11, 2008 @06:13PM (#24159507) Journal

    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.

    Anyone who is going to tartly respond to this inflammatory statement would do well to read the link contained in the statement... 'ripeness' is an important legal concept, and it is clear that the matter is, as yet, unripe.

    In order for the 'ripeness' qualification to be met, decision on the claim must affect the outcome. It's clear from reading the link that the outcome would not be affected, since the government is unlikely to perform another ex parte search; and even if they did, it wouldn't matter, since the guy who was indicted knows full well that he is under indictment, and would be even more of a fool to leave any more emails hanging around for the government to search.

    As for the other issues, I'll not comment, since I don't think my words would bear the fruit.

    • by corsec67 (627446) on Friday July 11, 2008 @06:25PM (#24159617) Homepage Journal

      This guy can't sue to prevent this from happening to other people?

      Could someone who hasn't been caught by this snooping sue?

      So, people who have been affect can't sue because it wouldn't happen again, and people who haven't been affected can't sue either?

      Or is my thinking just wrong? (IANAL, so that is easy)

      • Re: (Score:1, Informative)

        by Anonymous Coward

        ripeness is a dodge legally to allow a court to distance itself from a controversy.
        he cant sue for other people because eh has no standing.
        other ppl cannot sue because they have no ripeness or standing either.

      • by sumdumass (711423)

        Anyone effected by the actions can sue. The problem is that the suit is for damages (statutory, real, and punitive). This guy was attempting to appeal an earlier decision. The ripeness of the argument basically means that even without these emails or the evidence presented by or in connection with these emails, he would have gotten the same ruling.

        Your actually thinking of a separate process connectedly similar by the same laws. If the guy could show that the outcome of his trial would have been different,

    • Re: (Score:3, Insightful)

      by EdIII (1114411) *

      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 coul

      • by Londovir (705740) on Friday July 11, 2008 @08:38PM (#24160663)

        In the same spirit of respect, I have to disagree with what you posted.

        If you read the entire opinion, the following was mentioned:

        - The government sought permission twice from a magistrate judge to gain access to the guy's email records. (So it's not a warrant, but it WAS an official court order)
        - The government had to demonstrate to the magistrate that the records they sought contained information "relevant and material to an ongoing criminal investigation" (So it wasn't a blind or frivolous fishing expedition)
        - The government was ordered by the magistrate to delay giving notice since the judge felt there was a credible chance of the guy tampering with evidence
        - The judge sealed the court orders related to the searches

        My point is, unlike other abuses of government warrantless work, at least this one had some measure of judicial review involved. That makes this case different, IMHO, than other warrantless wiretapping and such, and care should be taken to not draw conclusions about either with a broad stroke here.

        The court also felt that not only was the case "not ripe" for ruling (which has a very clear and painstakingly discussed meaning in the opinion), but that the guy partially argued on the wrong grounds. They almost suggest he MIGHT have had a shot of having his case heard if he'd argued 1st Amendment rather than 4th Amendment (since he alluded to the idea of a "chilling effect" when it comes to emails) - but he didn't, he argued 4th Amendment.

        In fact, from reading the opinion, it seems as though this guy completely "screwed up" his entire arguments. It sounds as though he sued on the grounds of future, potential searches, rather than on particular admissability of the emails that were gained during the prior 2 searches. It definitely was an issue that the guy sought to overturn ALL of 2703(d), for everyone, rather than just his particular case. The court makes great pains to state how they refuse to make a potential constitutional ruling for a general class situation where each person's particulars may be widely different.

        I'd say the court did a reasonable thing with this decision, all things considered. The guy clearly should have known from his Yahoo TOS that his emails weren't going to be fully private in the first case - and in fact it was pointed out in his own TOS that "emails will be provided to the government upon request." (That argues, possibly, that the government may have been able to get the emails from Yahoo without any court involvement at all - depending on how Yahoo wants to proceed)

        All in all, seems like nothing more to see here to me. Let's focus on FISA, where the real problems are, not on this non-case.

        • this is why we need to get away from the adversarial system to something else that determines "truthfulness" and can meet binding punishments to BOTH sides if rules are broken. When the prosecution breaks the rules, the investigation of that rule breaking should also be under that trial's jurisdiction, not dependent on those same offices to file new charges. In cases like this on sentencing day both the defendant and possible officers will be going to jail at the same time!

          In a famous case like the OJ case

          • by sumdumass (711423)

            It isn't that they got away with it, he can reformulate the arguments and resubmit them. In fact, that is probably why the court suggested going into the 1st amendment arena.

            And no, the only remedy isn't allowing the bad guy to be let go. Anyone can complain to the bar which can remove the prosecutions ability to practice or even work as a prosecutor (look at Jack Thompson and Bill Clinton. Also, the alleged activity can be punished by the local political scenes, or if it wasn't a federal case, any higher j

            • they're not "rabidy corrupt"... just casualy, trivially corrupt. Nobody will prosecute them for a "paperwork" error... they'll just send the records out NOW and say "oops!". This is the problem with our system. Casual, "clerical" errors are deemed the "defendant's" problem by the courts. It's why building inspectors and police can flood somebody in the neighborhood they don't like with "little" tickets and any investigation into them will get brushed aside for "real crime".

              Judges have no power to enforc

              • by sumdumass (711423)

                they're not "rabidy corrupt"... just casualy, trivially corrupt. Nobody will prosecute them for a "paperwork" error... they'll just send the records out NOW and say "oops!". This is the problem with our system. Casual, "clerical" errors are deemed the "defendant's" problem by the courts. It's why building inspectors and police can flood somebody in the neighborhood they don't like with "little" tickets and any investigation into them will get brushed aside for "real crime".

                Clerical errors aren't necessari

      • by mpe (36238)
        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.

        It's even more fundermental than that. Without proper oversight law enforcement simply will not do the job of going after people who are dangerous to society as a whole. Because these people are dangerous to "cops" too. Be they well arme
    • by dunnius (1298159)
      The claim of 'not yet ripe' is a really lame excuse so that they don't have to rule on this, those lazy bastards. A blatant violation of the fourth amendment is not acceptable. It is really sad when our judges refuse to protect the constitution.
    • by cpu_fusion (705735) on Friday July 11, 2008 @07:07PM (#24159973)

      I think you just described "mootness", not "ripeness."

      Ripeness is a prudential rule (i.e. court-created) that the court uses to basically say that not enough is understood about the pros and cons of a particular ruling for stare decisis at the appellate level.

      Sometimes the court invokes Ripeness when the counsel (or facts) are judged to be not adequate for a good decision. e.g. defense counsel sucks, or the facts suck, or whatever.

      I'm not saying either is the case here; it's just a dodge for the court.

      I think the prudential standing rules should be unconstitutional, but given that deciding constitutionality is the courts domain, I don't see them giving this power up.

    • by Free_Meson (706323) on Friday July 11, 2008 @07:12PM (#24160005)
      A lot of folks here are going to complain about this decision without really understanding the case. It seems to me that this guy's lawyer made some poor decisions if he was pinning his hopes on this decision.

      It appears that Warshak asked for two things:
      -an injunction against future searches under 2703(d) without notice
      -a ruling on the constitutionality of 2703(d) on the grounds that it allows the violation of a citizen's reasonable expectation of privacy without a warrant

      On the first matter, the court's ripeness argument strikes the nail on the head. Warshak knows that he is under investigation now (indeed, he is convicted) so there's no need for judicially-delayed notification.

      On the second matter, the court points out that a citizen's reasonable expectation of privacy (REP) when using an electronic mail/data storage service will vary with the terms of service agreed upon between the citizen and the service provider. Thus, whether a citizen has a REP should be decided on a case by case basis.

      Warshak should be arguing that he had a REP and that the statute as applied to him was a violation of his 4th amendment rights. I don't think that's a winner, as 2703(d) appears to require probable cause or something like it.

      Probable cause:

      Probable cause is what would lead a person of reasonable caution and prudence to believe that a person, evidence, or contraband related to a crime is in a specific place at a specific time.

      2703(d):

      "a court of competent jurisdiction" may issue an order based on "specific and articulable facts showing that there are reasonable grounds to believe that the contents of a wire or electronic communication, or the records or other information sought, are relevant and material to an ongoing criminal investigation."

      2703(d) is slightly more broad than probable cause, as there is no need for the records or other information sought to be useful as evidence of a crime. They need merely be relevant and material. For example, a contact list from Warshak's email service provider may give investigators an idea of who to contact to discover more victims of his wire fraud scheme without itself being evidence of said scheme. In this case, though, I suspect that investigators would have had sufficient probable cause had they sought a warrant. As with a warrant, investigators had to prove to an impartial magistrate their reasonable belief that Warshak's service provider had evidence relevant to a specific criminal investigation. The principle advantage gained by using 2703(d) in this case appears to be the delayed notice provision.

    • by shanen (462549)

      That's one way to put it. The other way to look at ripeness is the appeals judge can choose to ignore some crime by saying the current case just isn't ripe enough. It's basically a subjective call, but I'd love to see the statistics on the 'ripeness' decisions of the current Supreme Court so-called Justices.

      The American legal system might do well to consider some judicial reforms based on international standards. In many countries, the courts can actually look at laws for Constitutional questions before any

    • it is very ripe because prosecution did not perform the defense of ALL the evidence gathering options as required under the law and court procedures. On one hand it may not change the outcome of the case because the evidence was legally obtained. On the other hand, they cheated at the rules.. the defensed didn't get the proper, equal time to consider defense against the evidence.

      There MUST be some sanction or we don't have the rule of law. That is the problem with so much of what's going on under the Bush

  • Sorry dude (Score:3, Insightful)

    by NaCh0 (6124) on Friday July 11, 2008 @06:15PM (#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.

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

      by mabhatter654 (561290) on Friday July 11, 2008 @10:23PM (#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 hguorbray (967940) on Friday July 11, 2008 @06:15PM (#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 sumdumass (711423)

      Citizens had respect for the rule of law? I thought that was shown to be a false statement 10 years ago with "it was just a blowjob".

  • The 9th Circuit could have decided the facts presented in this case (the close opinion is proof enough of that), but they didn't. So the poor injunction-seeker is denied his injunction because his legal claim is not ripe for adjudication.

    Sooner or later, some dirtbag is going to be charged with a crime and evidence is going to be collected via the challenged Act. The dirtbag will file a motion to suppress, and an appeal will eventually result from that (with the dirtbag's liberty hanging in the balance).

    S

    • by nomadic (141991)
      The 9th Circuit could have decided the facts presented in this case (the close opinion is proof enough of that)

      Doubtful, since the opinion was produced by the 6th Circuit.
  • by Anonymous Coward

    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 th

    • If I leave my door unlocked it is still a crime to enter without permission, and it is still unconstitutional to do a search without cause.

      Also, email is just as secure as traditional, envelope contained, mail, more so even, since intercepting email requires skill, intercepting mail just requires a working pair of hands. The difference is that with snail mail the law protects privacy instead of stripping it away.

    • by Null Nihils (965047) on Friday July 11, 2008 @07:06PM (#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."

      • it's just like sending a letter in the mail... you don't expect to "encrypt" it, just send it in a normal envelope and ask nicely not to read it. But you don't expect the post office to start a "letter reading" department either.

        • Yes, but keep in mind that mail sent via U.S. Postal Service has, at least in theory, some incredibly strong legal protections.

          Tampering with the mail is considered a grave enough offense that the U.S. Postal Inspectors are sworn, gun-toting federal agents with the full power to conduct investigations and arrests related to to the mail.

          While I might not be able to guarantee privacy of postal mail (in the technical sense, unless I am printing out a PGP-signed message), I DO have a reasonable expectation that

          • so why is email suddenly different? Why should we "expect" it to be snooped just because they can? or because it might go to the wrong address and they might open it?

            The issue is about the RIGHT NOT TO BE SNOOPED by the govenment! The government doesn't automatically have the power to research people for "the hell of it", what is a good reason to give it to them.. especially with relaxed FISA rules.

    • 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

      When I send a postcard through the mail, I understand that it might be seen by postal employees. (Not by the general public - there is still some expectation of privacy. If my mailman posts the contents of a postcard from my girlfriend to me on his blog, I think there's good grounds for legal action.)

      Once I take a received po

      • by mpe (36238)
        Once I take a received postcard and store it in my files, I have a strong expectation that no one can look at it.

        It would not be reasonable if random post offices were photocopying postcards and filing the copies. At least not in the so called "free world", where you don't expect postal workers to also work for "State Security".

        This "law" (really, nothing in contradiction to the Constitution ought to be called a law) refers to "electronic communication that has been in electronic storage in an electroni
  • After FISA, this does not surprise me at all.

    Another sad day for America.

    How will it all end?
    • Life is not fair. We hope for fairness and justice and are really let down when it doesn't happen.

      Fairness and justice are a promise we've been given as children.

      After a number of years of being told how fair things should be, we are then taught that we shouldn't quite expect that.

      How will it end? It won't be all that different than it is now. People in power will give a hard time to those they don't like, undue favour to those they do like and most everyone else will be ignored. They will just have a whole

    • Re: (Score:2, Insightful)

      by ee_smajors (1157317)

      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

      • 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!

        Really? Thomas Jefferson, who was not just a slave-owner but a slave-rapist, and who believed that black people were inferior to white people "in the endowments both of body and mind", was more egalitarian than any of our present day politicians?

        That's setting the bar lo

  • hmm (Score:3, Informative)

    by nomadic (141991) <nomadicworld@NOSpam.gmail.com> on Friday July 11, 2008 @06:45PM (#24159789) Homepage
    Before everyone expends all that energy being outraged, the relevant statute is here [justice.gov].:

    While some of its aspects are kind of on the border of due process, it is not a generic "no warrant needed" law.
  • 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

    • Ultimately, this comes down to whether you believe that email is more analogous to a sealed letter sent through the Post Office, or an open postcard. Tampering with the former is a felony, whereas unauthorized reading of the latter is, well ... expected, I guess. I've always treated my email more as the electronic equivalent of a postcard. I'm fairly unusual in taking that position though. People have an unreasoning expectation that a computer will keep their communications from prying eyes, which it mo
    • 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?

      It's not only about what government does, it's about what government is *supposed* to do, legally.

      The government is *not* supposed to snoop on your communication without a warrant. Period.

      Of course you should be aware of the fact that they're going to do it anyway... and that any idiot with at least a litle clue will also snoop on your mails, if he can. But the fact that anybody who can do it, does it, does not make it legal. They should (theoretically) be punished, both the government and the idiot(s).

  • by kaaona (252061)

    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 om

    • ...redistribute them to his victims... Never going to happen in the US without a separate class action suit that will pay off a few more lawyers and leave next to nothing for the victims.
  • Welcome to the USA (Score:1, Insightful)

    by Anonymous Coward

    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. th

  • I should have a reasonable expectation of privacy in my e-mails so far as my service providers and others involved in transporting it.

    There is always the chance of some sort of "man-in-the-middle" attack, or misdirection of e-mail or even of the technoids trying to chase down a problem seeing random e-mails on occasion.

    BUT, without probably cause and a warrant I should have a complete expectation of privacy in my e-mails in reference to the US federal and local governments.

    Unless it is addressed to them, th

  • 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.

    Fuck you, I have a right to challenge this law.

    See you in the SUPREME COURT. Yes, if they refuse to hear this in appeals you CAN bypass them.

  • by yuna49 (905461) on Friday July 11, 2008 @09:20PM (#24160967)

    From the ruling:

    "The government sought permission from a magistrate judge to require Warshak's internet service
    providers--NuVox Communications and Yahoo!--to turn over Warshak's account information,
    "[a]ll [l]og files and backup tapes" and the contents of e-mails that had been "accessed, viewed, or
    downloaded" or that were more than 181 days old."

    Why were his emails still available to government in the first place? Does this mean that Yahoo maintains copies of every email sent through its system for time immemorial? Looking at both Yahoo's Privacy Policy [yahoo.com], and its policies concerning email [yahoo.com] in particular, I see nothing about archiving emails or the length of time the archives are maintained. Should I infer from this case that any email anyone ever sent to anyone on Yahoo is archived somewhere and available for government perusal at any time?

    I know there is an ongoing controversy between ISPs and the Justice Department concerning the archiving of logs containing login information, but how many Yahoo users do you think might be surprised to hear that all their email is archived, too? Why isn't Yahoo required to tell its users about these policies, which seem to raise much bigger privacy concerns than whether they might send me an "Alert" once in a while?

    • If it's anything like other major companies, they likely maintain backups of their servers on tape (and offsite) for disaster recovery. If the data center were to get destroyed, they'd have the tapes in some other location to make sure they could be back up and running quickly.
      • by yuna49 (905461)

        Yes, of course, but for how long? What are their retention policies? Is there any plausible reason that they'd need to maintain backups for longer than, say, six months (which is the time period at issue in this case)? For a service as large and as busy as Yahoo's, I could see an argument that backups more than a month old are too out of date to be useful.

        What if I were using a provider offering a POP3 service? Once I download my mail (assuming I don't enable the "leave mail on server" switch), it should b

    • Re: (Score:2, Insightful)

      by aoeu (532208)

      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)

    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."

The reason that every major university maintains a department of mathematics is that it's cheaper than institutionalizing all those people.

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