Federal Judge Says E-mail Not Protected By 4th Amendment 451
DustyShadow writes "In the case In re United States, Judge Mosman ruled that there is no constitutional requirement of notice to the account holder because the Fourth Amendment does not apply to e-mails under the third-party doctrine. 'When a person uses the Internet, the user's actions are no longer in his or her physical home; in fact he or she is not truly acting in private space at all. The user is generally accessing the Internet with a network account and computer storage owned by an ISP like Comcast or NetZero. All materials stored online, whether they are e-mails or remotely stored documents, are physically stored on servers owned by an ISP. When we send an e-mail or instant message from the comfort of our own homes to a friend across town the message travels from our computer to computers owned by a third party, the ISP, before being delivered to the intended recipient. Thus 'private' information is actually being held by third-party private companies."" Updated 2:50 GMT by timothy: Orin Kerr, on whose blog post of yesterday this story was founded, has issued an important correction. He writes, at the above-linked Volokh Conspiracy, "In the course of re-reading the opinion to post it, I recognized that I was misreading a key part of the opinion. As I read it now, Judge Mosman does not conclude that e-mails are not protected by the Fourth Amendment. Rather, he assumes for the sake of argument that the e-mails are protected (see bottom of page 12), but then concludes that the third party context negates an argument for Fourth Amendment notice to the subscribers."
Stop using FedEx (Score:5, Interesting)
Wow, best to stop using FedEx and other *private* companies to send mail then.
I wonder if you can use the DMCA to your advantage (Score:5, Interesting)
As a bit of an aside, does it matter if you try to make the data private via encryption?
There could be an interesting relationship here: If you claim (probably rightfully) that you own the copyright to the 'content' in question, and encrypt it, does this mean that it would be unlawful for anyone to try and decrypt it under the DMCA?
As Half Life 2 taught us... (Score:3, Interesting)
Re:Stop using FedEx (Score:3, Interesting)
I guess the 4th Amendment doesn't apply unless there is an unbroken chain of ownership between private parties.
Re:Not the same, in several aspects (Score:5, Interesting)
I was thinking the same thing about safety deposit boxes.
Re:Not the same, in several aspects (Score:5, Interesting)
So does the phone company regarding your phone calls. That doesn't mean that there isn't a reasonable expectation of privacy.
Other cases (Score:2, Interesting)
Just out of curiosity, what are the privacy rights on say,a storage facility.Can the cops just walk on in and open things up, or do they need a warrant?
Re:Not the same, in several aspects (Score:4, Interesting)
The email leaves my home network is sent to my personal mail server. This transfer uses TLS.
My mail server sends it to GMAIL. This transfer uses TLS.
Gmail stores it. Google promises to only disclose my information with my permission or with other controls on dissemination. See Google's privacy policy [google.com] and the Gmail privacy policy [google.com]
I have ensured my family members use https/pops to download from gmail.
How do I not have an expectation of privacy in that transaction?
Re:PGP (Score:4, Interesting)
I thought Hushmail did something like that. Like they store your email encrypted and your password decrypts it when you need access, so they can't read your mail even if they get a subpoena. I think it even sends it to your browser in its original encrypted form and the client decrypts the data.
TFA talks about notification not access (Score:4, Interesting)
The article doesn't seem to make the distinction between mail at rest (on a mail server) and mail in transit (passing on the wire) so I don't know if running your own mail server makes any difference here or not. It would at least reduce the exposure time for "snapshots" to be taken and disclosed. If your mail was on your own server you would at least have to be approached by a court with a subpoena or similar that demands access, which you would probably notice.
Encryption is of course, the answer.
Re:Not the same, in several aspects (Score:4, Interesting)
I run my own mail server. Would this precedent then not apply to me? I have a reasonable expectation that I alone have access to my mail server.
This is a bad precedent regardless. When you send something via UPS or FedEx, you are giving your parcel to a 3rd party for storage and delivery. When you make a cell phone call, you are giving data packets representing your voice to a 3rd party for delivery. Extrapolating the argument further, would then the only way to have a reasonable expectation of privacy in your communication is when you are speaking face to face with the intended recipient?
The intentions of the 4th amendment need to be upheld in a rapidly changing world. Most people have only a minuscule understanding of the technology they use and most people DO expect their emails to be private communication. Precedent like this might move people to explore encryption, which I think law enforcement can overwhelmingly agree will make their job much more difficult.
Re:Not the same, in several aspects (Score:5, Interesting)
I rent an apartment, am I fucked as well?
Occasionally I am just absolutely struck fuck-dumb by the sheer level of pants on head retardedness displayed in decisions like this. Then I realise the 1st and 2nd amendments come into play.
Re:I wonder if you can use the DMCA to your advant (Score:3, Interesting)
Re:3rd-party doctrine (Score:4, Interesting)
You would be wrong.
Most those things have separate laws to cover them. Well some of them due, I do not think there are any such protections for safe deposit boxes other than the providers of said boxes have a reputation to maintain if they want people to use them. There aren't to my knowledge any such protections for storage units, although it may be covered as if it were your home by a different law.
Phones and mail have laws specific too them to protect them, nothing to do with the 4th admendment other than spirit and intention.
We're just going to have to get off our lazy asses and demand the same coverage for internet related communication.
The main difference with phones is historically, there has not been a recording of the call stored outside the persons home. The phone company doesn't record every conversation for you to listen too later. If they did, you'd be in a different arena. Its much easier for law enforcement to get records of your calls than it is to wire tap your calls, the records are already stored so you can be billed, and you and I demanded the phone company do so, as we expect detailed billing.
With email, ISPs DO record it for later, as part of the service, thats the way it works. Your email ISN'T private and its rather retarded that you think something stored on someone elses hard drive is private to you, regardless of the law.
Re:Stop using FedEx (Score:4, Interesting)
Yes, and if the police show up and say "we wanna open this package" FedEx will say "I've gotta see a warrant or I'll be liable for you violating someone's 4th amendment rights". Or, at least, that's what will happen if the person the police are talking to actually speaks english...
Re:Not the same, in several aspects (Score:5, Interesting)
Tacit approval? I cannot agree. Most people consider their email to be the same as their real mail. There is no reasonable cause to consider the technical details of the email process as the common user has no knowledge of such details and typically believes his email is secure whether or not that is actually the case.
This judge is simply wrong to assert that the technical details disqualifies email from having 4th amendment protection.
FedEx has the same access to the contents of the mail as an email host provider has to read a user's email. One has but to access it. We "trust" FedEx not to tamper with or damage our mail. We "trust" email service providers not to tamper with or damage our email. I see no cause for technical details to play as a factor primarily because the constitution makes no qualifications for protection and it is not for legislators, judges or presidents to add qualifications that aren't stated. I believe it is unconstitutional to attempt to do so.
Just like regular mail (Score:2, Interesting)
"When a person uses the postal service, the user's actions are no longer in his or her physical home; in fact he or she is not truly acting in private space at all. The user is generally accessing the postal service with a zip code and mailbox owned by the United States Postal Service. All materials in transit, whether they are letters or packages, are physically temporarely stored on facilities owned by the USPS. When we send a letter or a postcard from the comfort of our own homes to a friend across town the message travels from our home to facilities owned by a third party, the USPS, before being delivered to the intended recipient. Thus, "private" information is actually being held by third-parties."
I think the judge is (Score:3, Interesting)
Ok, I didn't RFA. I'm too upset already...
The judge is trying to change the guidelines: http://www.usdoj.gov/ [usdoj.gov]—s&smanual2002.htm
I forget the court case, but I distinctly remember a case where the result was the "reasonable expectation of privacy" was enough to consider your papers to be private. I am not sure it was supreme court or not that did this. Many older cases without computers do apply to computers; yet for some reason we need to rehash resolved issues because of widespread computer ignorance.
My gym locker, car, parking ramp, office desk, etc are now fair game? My papers must reside on my property now?
I remember 5th amendment stuff.. coming from non-computer situations but totally relevant; but this guy decides that email is somehow DIFFERENT than the physical mail services. (BTW, the USPS has gone private which is one reason postage has been constantly going up...) At least if you ENCRYPT email you have supreme court rulings protecting your keys (FISHER v. UNITED STATES) the "Fisher Test."
One could argue that unencrypted insecure access to external systems removes the reasonable expectation of privacy; and therefore makes it publicly accessible in a way, like biometrics which are pubic - in a way. (BTW, biometrics are not private-- don't use them for 'private' keys!) Then you could take stuff like Trash-- if you trash an email, is it private? could they claim digital trash is like physical trash?? (your trash is public once it leaves your property.)
Rot 13 (Score:2, Interesting)
When I board an airplane, I occasionally check a bag. That bag may contain my papers. The bag is stored in a container which is the property of a third party. The bag may be unsecured. My only reasonable expectation of privacy arises from the fact that my papers are in a bag.
If I ride the train to work, I may put my briefcase in the overhead container without locking it. I may even use the bathroom along the way, and leave my bag stored in a government owned vehicle unattended. I still have a reasonable expectation of privacy.
Similarly, if I rot 13 an electronic communication, and state that it is a private communication, it meets the exact same standards of expectation of privacy as a physical document that is protected.
With that, I give you this: The following message is a private communication from me to the original founders of Slashdot. It is rot 13 encrypted, which is equally secure as if I left my briefcase unlocked on a table at a coffee shop. I dare you to violate my 4th amendment rights.
Gunax lbh sbe perngvat fhpu n cbjreshy cyngsbez sbe gur qvfphffvba bs bhe shaqnzragny evtugf.
I wonder what would be the effect of someone else decrypting the above text and posting it? Suppose I left my briefcase on a table in a coffee shop, someone opened it and photographed the contents, then gave those photos to the police. Would the police be allowed to act on that information?
Not that it is the case here, but would the police be allowed to "hint" to someone that it sure would be nice to have a copy of the plaintext?
Re:Stop using FedEx (Score:3, Interesting)
Yes.... but if the police want to search your package they still need a warrant.. no matter whether your package is currently in the hands of FedEx or not.
Re:Not the same, in several aspects (Score:5, Interesting)
And, following that logic, my banking details are not private because bank employees can read them, my medical details are not private because insurance company employees can read them, my phone calls are not private because telephone company employees can listen to them, etc..
Re:Not the same, in several aspects (Score:3, Interesting)
Somehow you're reminding me: what makes me want to ROFL convulsively is watching the morons yelling into their Bluetooths in places like an airport or a downtown sidewalk, while clearly expecting privacy. Don't believe it? Try holding a running tape recorder near their face and see how they respond. Be ready to run (or fight).
I haven't assumed privacy on a telephone since 1954, and never, ever on a cell phone. For me this means that things I want to keep secret aren't mentioned on the phone. If I have to talk about them, it's face to face or STFU. Of course, it'd be different if I were in a business that required secrets. But still...
Re:Stop using FedEx (Score:3, Interesting)
Re:PGP (Score:1, Interesting)
Interpol has no law enforcement authority. They do not request court orders, they do not arrest people or sieze property. They act as a coordinator amongst various national law enforcement agencies and maintain international databases. If a foreign agency requested assistance from Interpol, Interpol would contact the local police agency and facilitate that assistance.
Re:Not the same, in several aspects (Score:3, Interesting)
When you send something via UPS or FedEx, you are giving your parcel to a 3rd party for storage and delivery.
I'm curious how US courts regard postcards. It seems to me that unencrypted email is more similar to a postcard than a package. I don't expect privacy for emails, not because I know how the law in my country treats that issue, but because I send them over a public network in plain text. Even if the law says it's private it still isn't.
A post under TFA: quotes "The constitutional guaranty of the right of the people to be secure in their papers against unreasonable searches and seizures extends to their papers, thus closed against inspection, wherever they may be." (Emphasis mine, I have reached a different conclusion than the poster who highlighted "wherever they may be" instead.
I've found a copy of the passage the quote came from, Ex parte Jackson http://www.altlaw.org/v1/cases/408308 [altlaw.org]
Immediately preceding that is:
In their enforcement, a distinction is to be made between different kinds of mail matter,--between what is intended to be kept free from inspection, such as letters, and sealed packages subject to letter postage; and what is open to inspection, such as newspapers, magazines, pamphlet , and other printed matter, purposely left in a condition to be examined. Letters and sealed packages of this kind in the mail are as fully guarded from examination and inspection, except as to their outward form and weight, as if they were retained by the parties forwarding them in their own domiciles.
It would seem to me that it is not inconsistent if there comes a judgement that email is not under 4th amendment protection and that to answer my own question, postcards probably aren't either.
Re:Not the same, in several aspects (Score:2, Interesting)
I rent an apartment, am I fucked as well?
Occasionally I am just absolutely struck fuck-dumb by the sheer level of pants on head retardedness displayed in decisions like this. Then I realise the 1st and 2nd amendments come into play.
Actually, you are more fucked than any of the of the other topics on this page. There is actually case law that shows it to be an un-hesitated action to have your landlord allow them into every inch of the apartment unless it be a clad iron box and that they can seize until the search warrant for the box goes through. However, why do we even bother arguing anymore. Tag it as terrorism related and all the civil liberties go into the wind. However, that is another can of worms for another time.