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United States Privacy The Courts Your Rights Online

11th Circuit Eliminates 4th Amend. In E-mail 490

Posted by CmdrTaco
from the well-that's-not-very-good dept.
Artefacto writes "Last Thursday, the Eleventh Circuit handed down a Fourth Amendment case, Rehberg v. Paulk, that takes a very narrow view of how the Fourth Amendment applies to e-mail. The Eleventh Circuit held that constitutional protection in stored copies of e-mail held by third parties disappears as soon as any copy of the communication is delivered. Under this new decision, if the government wants get your e-mails, the Fourth Amendment lets the government go to your ISP, wait the seconds it normally takes for the e-mail to be delivered, and then run off copies of your messages."
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11th Circuit Eliminates 4th Amend. In E-mail

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  • by elrous0 (869638) * on Tuesday March 16, 2010 @09:35AM (#31494448)

    Half of the court probably had to have the concept of "email" explained to them. These were the annoying pricks that wore ties to class back in law school, most of whom were out of touch even back then. Now you expect a reasonable verdict that reflects modern innovations and changing behavior out of them?

    "Email. Is that what my grandkids play their tic-tac-toe games on?"

    "Uh, no Your Honor, that's probably a portable gaming console."

    "Can I send a Tivo with one of those things?"

    "No sir, a Tivo is a Digital Video Recorder."

    "So an email is a Tivo?"

    "Sir, I don't even know how to answer that."

    "I'm ready to rule!"

    • by Anonymous Coward on Tuesday March 16, 2010 @09:41AM (#31494512)

      Mod parent up for not reading the article, only taking into account one side of the argument when forming an opinion, and not understand how the U.S. government works.

    • by ircmaxell (1117387) on Tuesday March 16, 2010 @09:44AM (#31494558) Homepage
      Agreed. But the kicker here, is if EITHER PARTY uses ISP hosted email, then the message is fair game here. So even if I run my own email server, I still probably won't be protected... Yet another right bites the dust in the name of misunderstanding...

      I wonder if the same could be said for people who get snail mail delivered to a Post Office Box? It's "delivered" via a third party (albeit one sanctioned by the government)... What about phone calls that go through an intermediary (Like VOIP or forwarding services)? What about telegrams? They all rely on the same concept that the message is delivered via an intermediary, so why aren't they "fair game" as well?
      • Re: (Score:2, Funny)

        by Anonymous Coward

        I'm marking all my mail as unread, right now!

      • by Jenming (37265) on Tuesday March 16, 2010 @10:12AM (#31495048)

        In order for Fourth Amendment protections to apply, the person invoking the protection must have an objectively reasonable expectation of privacy in the place searched or item seized.

        I don't know about you, but when I send an unencrypted email I have no expectation of privacy from the moment the text leaves my computer.

        • by ircmaxell (1117387) on Tuesday March 16, 2010 @10:22AM (#31495218) Homepage
          When I make a phone call, I don't expect privacy either. But I do expect my 4th amendment rights to be in force. So just because someone can tap in and listen, doesn't mean that the government can do so to gather evidence... And that's the subtle difference here. Just because "someone" can read what I sent, doesn't give the government the right to spy in on it.

          I'll give you another example. You're in your back-yard at your house talking with a friend. Sure, neighbors can likely hear your conversation, so you don't have an unusual expectation of privacy. But, if a FBI agent is sitting in a tree 100 yards away with a sound amplifier pointed at you (and hence recording/listening in to your conversation), that would be an invasion of your 4th amendment rights. And privacy is relative (you even allude to it in your quote). The fact that "objectively reasonable" is used to qualify privacy shows that it's relative. In your back yard, you wouldn't expect someone to explicitly listen in to your conversation (unless you were yelling). Conversely, if you were on a crowded train, you wouldn't expect any type of privacy from verbal communication (But you would expect a reasonable level of privacy if you were typing on your computer on said train). That's the difference. Not if there is any form of privacy, but if there is a reasonable expectation given the circumstances...

          JMHO...
        • Re: (Score:3, Insightful)

          by Kjella (173770)

          Talking on the phone isn't encrypted, having a conversation isn't encrypted, regular envelopes are the digital equivalent of ROT-13 and only protects against casual observation. "Expectation of privacy" is not something that applies only to unbreakable cryptographic safes, if it did it wouldn't have existed until the PC age.

          You may not have any expectation of privacy from the recipient, but if you consider that "voluntary disclosure" then the fourth amendment doesn't protect any communication at all. You do

        • by Chris Burke (6130) on Tuesday March 16, 2010 @03:43PM (#31500344) Homepage

          I don't know about you, but when I send an unencrypted email I have no expectation of privacy from the moment the text leaves my computer.

          Expectation of privacy means you can reasonably expect your privacy to be respected, not that you can reasonably expect it to remain secure even in the face of someone trying to violate it!

          Example: A conversation in your home is private, even though a simple glass held to your window can let someone listen in. It is reasonable to expect that people will not do this. A conversation in a restaurant is not private, because you cannot reasonably expect that nobody will listen to you -- in fact it's difficult for them not to.

          Your ISP has no reason to read your email outside of the header. It is reasonable to expect that your ISP will respect your privacy in this case. It is doubly reasonable to expect that the police will respect your privacy, so long as they are obeying the law.

          The interpretation that "expectation of privacy" means "how much privacy can you expect to have in the face of malicious people deliberately trying to violate it" is incorrect, and silly. It would make the 4th Amendment meaningless, because anything that someone can view is ipso-facto not private and thus not subject to the 4th.

      • Re: (Score:3, Interesting)

        The European Union has this: "Article 8 -Protection of personal data. 1. Everyone has the right to the protection of personal data concerning him or her. 2. Such data must be processed fairly for specified purposes and on the basis of the consent of the person concerned or some other legitimate basis laid down by law. Everyone has the right of access to data which has been collected concerning him or her, and the right to have it rectified. 3. Compliance with these rules shall be subject to contr

      • Re: (Score:3, Insightful)

        by AndersOSU (873247)

        I actually think the telegraph is a fantastic analogy for email. A message is drafted by one party, transmitted from one intermediary to another electronically, and delivered to the recipient. The intermediaries probably even keep logs of some information.

        I'm too lazy to look up the legal understanding of privacy for a telegraph, but if I were involved with this case, I think it would make a good start.

    • by Infonaut (96956)

      Just for sheots and giggles, I looked up the members of the US Court of Appeals for the Eleventh Circuit [wikipedia.org]. The youngest member, William H. Pryor, Jr., was born in 1962. Beverly B. Martin, the next youngest, was born in 1955. But the judges ages aren't necessarily a valid indicator of how tech-savvy they are. Alex Kozinski [wikipedia.org] of the Ninth Circuit, was born in 1950, and is well-known for, among other things, his grasp of technology.

      The other thing to remember is that the onus of responsibility is on the lawyers w

  • Once again (Score:4, Insightful)

    by Pojut (1027544) on Tuesday March 16, 2010 @09:36AM (#31494468) Homepage

    I've linked to it many times in the past, and it seems like a perfect time to do so again:

    http://haacked.com/images/TerroristsHateFreedom.gif [haacked.com]

    • Case Summary (Score:5, Informative)

      by TheMeuge (645043) on Tuesday March 16, 2010 @10:48AM (#31495636)

      The case can be read at:
      http://www.leagle.com/unsecure/page.htm?shortname=infco20100311081 [leagle.com]

      Here's a brief summary

      1. A guy sent some faxes to a hospital criticizing their management and mocking them.
      2. The prosecutors and police were friends of the hospital management and they investigated this as a "favor"...
      3. they secured three successive indictments against the guy, all of which included felony assault against a man he never met
      4. each time the indictments were dismissed by a higher court
      5. but they arrested and held him anyway
      6. so he sued for violation of his 4th because they got his phone records and emails without a warrant and for malicious prosecution
      7. The 11th circuit dismissed ALL the malicious prosecution claims, granted the police and prosecution total immunity, and ruled that the plaintiff's rights weren't violated when his emails were turned over, because they had already been "delivered" to his ISP.

      There are a lot more things wrong with this decision than just the 4th amendment violations.

      • Re:Case Summary (Score:5, Insightful)

        by Cytotoxic (245301) on Tuesday March 16, 2010 @03:23PM (#31500066)
        Holy crap, that was a terrifying read. Basically the appeals court found that the prosecutor and cop in the case were granted Absolute Immunity from prosecution for their actions in intentionally framing this guy for multiple felony and misdemeanor crimes. The appeals court found that the plaintiff did indeed get falsely accused, and that the prosecutor knowingly participated in presenting false testimony to get indictments - but the poor guy has no recourse.
  • Is the Second still in effect?
    • Re:Other Amendments (Score:5, Interesting)

      by dkleinsc (563838) on Tuesday March 16, 2010 @09:42AM (#31494524) Homepage

      No. The only one that's really left appears to be the Third, which prevents the quartering of soldiers in private homes.

      • Re: (Score:3, Funny)

        by Anonymous Coward

        And if soldiers attempt to quarter themselves in your home, there's nothing you're going to be able to do to stop them.

      • Re:Other Amendments (Score:4, Interesting)

        by zach_the_lizard (1317619) on Tuesday March 16, 2010 @09:56AM (#31494750)
        I think that one may have been abused during the Civil War, so even that one has been violated. It just hasn't been continuously violated.
        • Re: (Score:3, Informative)

          by ircmaxell (1117387)
          No, it wasn't. The way the 4th amendment is worded, No soldiers can be quartered in any house without consent of the owner during peace times. During war, they may so long as it is done in a manner which was prescribed by law (So as long as the government passed a law with guidelines on how to do it, it is legal for soldiers to bed in a home without the consent of the owner)... At least that's how I read it...

          No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner,

        • by Miseph (979059)

          That one and several others. Lincoln declared Martial law, suspended Habeas Corpus, and openly ignored huge chunks of the Constitution and US law.

          If it weren't for the issue of slavery, and the fact that the South didn't behave all that much better, it would be very hard for anyone to honestly side with Lincoln and the North.

          And no, I'm not a Southerner, secessionist, KKK member, or any of that nonsense.

      • Re: (Score:3, Interesting)

        by roaddemon (666475)

        Mod me -1 pedantic, but it only prevents the quartering of soldiers in private homes "without the consent of the Owner".

        "No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law."

      • Re:Other Amendments (Score:4, Interesting)

        by Shining Celebi (853093) on Tuesday March 16, 2010 @10:45AM (#31495586) Homepage

        No. The only one that's really left appears to be the Third, which prevents the quartering of soldiers in private homes.

        I know it's popular to think that the government is taking more and more of our rights away, but I don't see how that's the case. For example, in 2008, the Supreme Court dramatically broadened the scope of the Second Amendment to say that the federal government has virtually no power [wikipedia.org] to institute any kind of gun control on federal property. This is obviously an increase in freedom over what had been settled law. The Supreme Court will soon be taking up the issue of whether or not state gun control is legal. I'd say our First Amendment rights have been greatly strengthened too over time. When John Adams was President, he arrested dozens of people for saying things he didn't like. Nowadays, we can say whatever we like about a President. Not only that, it's a lot easier to get an audience, thanks to the Internet. The list goes on and on.

        Can you explain how, exactly, our freedoms are less than they formerly were?

    • Re: (Score:3, Interesting)

      by Pojut (1027544)

      Let's see...we have three legally purchased firearms in our house, each of which we could take to the range any day we please and blow through as much ammunition as we can until they kick us out.

      Yeah, I would say the Second Amendment is still in effect. Stop sensationalising things.

    • Re: (Score:3, Insightful)

      Depends on the state. I live in Arizona and I carry a handgun anytime I feel like it, anywhere but a bank or a federal building. I don't usually, because it's not necessary. Don't try this in California unless you want to see the inside of a jail cell. Gotta love states that can arrest you and convict you for exercising your constitutional rights.
      • Re: (Score:3, Interesting)

        Federal property aside, I don't believe there is any part of Arizona carry law that specifically pertains to banks. Some banks may post that they prohibit carry and that posting has the effect of law (usually covered as 'trespassing'), but if a bank has no policy then there is no reason you couldn't carry there if you wanted.

        I live in VA and during the summer I open carry, and I selected a bank that did not have any objections to my sidearm. It's best to look at the small, local banks (mine has three goin
        • Re: (Score:3, Interesting)

          That's true, however all banks that I'm aware of post no firearms allowed. If I was carrying my compact concealed I might just wear it anyway - it's not a violation of state law, and all they can do is ask you to leave, but really I only go to the bank a few times a year, and most of those trips are to the drive through.
          • by ElectricTurtle (1171201) on Tuesday March 16, 2010 @11:44AM (#31496540)
            Not that I'm trying to get you to switch banks or anything, but I just want to make sure you know that there are banks in AZ that are accommodating. I hear [mywowbb.com] that TruWest Credit Union has a policy to not exceed state law. Other people in that thread have noted tolerance from Chase, Bank of America, and Hughes FCU.
  • Self Hosting (Score:3, Insightful)

    by carp3_noct3m (1185697) <slashdot@warrior ... SD.net minus bsd> on Tuesday March 16, 2010 @09:39AM (#31494496)
    Well, I'm curious about something, how does that apply when I control and run my own domain and email, but it is hosted by a third party? I have been using dreamhost for the past 3 years and I love it, but would they have to only contact dreamhost or do they have to contact me as well? There seem to be two alternatives, one of which I am already partially implimenting, that is 1) Hosting your own email on your own server (at home) and 2) (the one I'm partially doing) Encrypting email whenever possible. People often forget that email is plain text, and unless you are encrypting it, it could be comprimised at any number of locations and generally should not be considered pragmatically private at all.
  • Encryption (Score:3, Insightful)

    by outofpaper (189404) on Tuesday March 16, 2010 @09:39AM (#31494498) Journal

    -----BEGIN PGP SIGNED MESSAGE-----
    Hash: SHA256

    This is why the use of encryption is a must. Sending email is like sending a postcard, except that copies of it are made and stored for perusal by government officials and ISP employees. Since most people use Firefox they should check out the amazing http://getfiregpg.org/ [getfiregpg.org]
    -----BEGIN PGP SIGNATURE-----
    Version: GnuPG/MacGPG2 v2.0.14 (Darwin)
    Comment: Use GnuPG with Firefox : http://getfiregpg.org/ [getfiregpg.org] (Version: 0.7.10)

    iF4EAREIAAYFAkufikAACgkQmu9IBuIu3yEYOgD/dDFE5oEieIS9PWP7dUm+rOXU
    1yfiGTlXropncPeFhX0BAIaYlc1iecFMV3CE2G2w7zZXO7pNlWEVqHS0yD9J2Z3j
    =HF92
    -----END PGP SIGNATURE-----

    • by Anonymous Coward

      Email is more like a telegraph than a postcard.
      With a postcard (in the US) you hand it over to a government (now quasi-gov) agency that is legally bound to handle your message in confidence.

      With the telegraph system you sent a message in cleartext via a series of intermediaries [telegraph operators/mail servers] none of which were guaranteed to work for the same company. And the message was sent a a series of binary signals (dots-dashes/ones-zeros)
       

    • Re: (Score:3, Insightful)

      by gzipped_tar (1151931)

      Unfortunately, /. sometimes sees a GPG-signed message as junk that fails to pass its bullshit "bullshit filter". Especially when you use SHA512 as the hash function.

      Filter error: That's an awful long string of letters there.

      • by Hadlock (143607)

        It should be trivial if it gets flagged as spam, to do a character count and see if the letters "SHA" appear anywhere in the message, and then parse the message for any strings that are the same length as a 128/256/512 hash. If that fails, just write a rule "if message contains the word(s) SHA place in inbox".

        • by iammani (1392285)

          If that fails, just write a rule "if message contains the word(s) SHA place in inbox".

          Will be abused by spammers.

    • This is why the use of encryption is a must. Sending email is like sending a postcard, except that copies of it are made and stored for perusal by government officials and ISP employees.

      Yup.

      I routinely have clients asking me about security and encryption and VPNs and keyloggers and all this stuff... And then they'll be sending truly critical and confidential business information in plaintext through a Hotmail account.

      Had one client convinced they'd been "hacked" because some confidential information made it out into the hands of folks who shouldn't have had it... Now, some employee obviously shared that information with someone they shouldn't have... But nobody hacked anything. Turns o

  • by rotide (1015173) on Tuesday March 16, 2010 @09:44AM (#31494552)

    Ok, snail mail isn't allowed to be opened and copied under federal law (exceptions such as military, etc, exist).

    Sec. 1702. Obstruction of correspondence

    Whoever takes any letter, postal card, or package out of any post office or any authorized depository for mail matter, or from any letter or mail carrier, or which has been in any post office or authorized depository, or in the custody of any letter or mail carrier, before it has been delivered to the person to whom it was directed, with design to obstruct the correspondence, or to pry into the business or secrets of another, or opens, secretes, embezzles, or destroys the same, shall be fined under this title or imprisoned not more than five years, or both.

    If only we could get the same for email. That way no copies can be made and handed off to another party.

    Sadly, I doubt this will ever happen.

    • by v1 (525388)

      You quoted the right passage without knowing it

      before it has been delivered to the person to whom it was directed,

      That's the stipulation they used in the ruling.

      • by rotide (1015173)

        I take that to mean "if you pry into the business or secrets of the mail before it is delivered" then you're in violation.

        Meaning, it's protected while en route. The second it's delivered it has no protection under that law and becomes a possession and protected as such.

      • The problem is that the government or anyone else doesn't know when it is actually delivered to you.
        I.e., at any instance, the email might be still waiting in your inbox.
        So, strictly speaking, they are not allowed to open it.

      • by mea37 (1201159)

        Yes. However, it's pretty clear that wasn't written to mean "it's ok to steal the mail from the post office after it's been delivered", because at that point the post office no longer has the mail for you to steal. In hindsight, knowing that ISP's do still have the message after it's delivered, the wording seems sloppy; but when applied to the technology for which it was written, it means exactly what it was intended to mean.

        Sadly, "interpret the law" can mean two things. What should happen (consider the

    • If only we could get the same for email. That way no copies can be made and handed off to another party.

      Maybe the USPO needs to start an email service?
    • Your email is not a letter. It is a selection of bits.

      You cannot control what happens to those bits once you have hit the "Send" button any more than the BPI can control what happens to the bits of the most recently ripped JLS / Coldplay track. You're effectively suggesting that we legislate DRM for our email.

      Do you know how daft that sounds?
  • Google? (Score:3, Interesting)

    by Fractal Dice (696349) on Tuesday March 16, 2010 @09:45AM (#31494566) Journal
    Will google now pull out of the US?
  • by hacker (14635) <hacker@gnu-designs.com> on Tuesday March 16, 2010 @09:46AM (#31494568)

    I've said this many times here before, and I'll say it again... don't let them see anything other than the delivery envelope (headers) of your email. They can't legally open your postal mail, so treat it the same: gpg/PGP-encrypt your emails; all of them.

    If a recipient you email frequently doesn't know how to use encryption, teach them. There are plugins for Firefox, Gmail, Thunderbird, Mail.app, and dozens of other mail clients.

    If it's someone you don't converse over email with often, then it's probably not worth protecting anyway.

    Seriously...

    • http://www.sente.ch/software/GPGMail/English.lproj/GPGMail.html
    • http://enigmail.mozdev.org/home/index.php
    • http://getfiregpg.org/s/home
    • http://www.cumps.be/gpg-in-outlook-2007-outlookgnupg/
    • http://www.gnupg.org/related_software/frontends.html

    Learn to create, protect and use your gpg keys and your keychain. It's not that hard, and the benefits far outweigh the minutes of work and learning it takes to incorporate it into your daily workflow.

    • by betterunixthanunix (980855) on Tuesday March 16, 2010 @10:05AM (#31494918)
      Sadly, most people see encryption as an annoyance that prevents them from checking their email on random computers. They do not frankly care about whether the government reads their mail, "I have nothing hide," etc. Convenience trumps all, always.
    • by Perl-Pusher (555592) on Tuesday March 16, 2010 @10:17AM (#31495122)
      I would go further, write a haiku for your signature, register the copyright, put a copy right notice in the message and encrypt all of your mail. Decrypting a copyrighted work and making multiple copies, runs a foul of the Digital Millennium Copyright Act and other copyright laws.
    • by Kozz (7764)

      I think it's been clear that the obstacles to widespread adoption of email encryption are 1) ease of use, and 2) critical mass.

      Yes, yes. For you and me, using encryption is not terribly difficult. We might even be able to teach our close (non-geek) friends how to use it. But you're also implicitly taking on an educational challenge. How will you convince this friend of the merits of using encryption? My guess is that for most people I would want to teach, I'd waved off and dismissed because they don't

    • Re: (Score:3, Insightful)

      by bhima (46039) *

      Encryption can only be useful for emails when people use it for all or most of communications, so that one does not instantaneously flag communications of interest. Looking at my email habits, there are: 4 people who work for firms where encryption is specifically forbidden in company policy. 12 people who absolutely could not be taught how to use encryption... Including my mother who writes email as if she sending a telegraph and is paying per character. 2 people who could use encryption but who don't us

    • You obviously never tried to convince a nontechnical person to use encryption. They just get that sour look on their faces, thinking "yeah, yet another stupid techie thing I don't care about but now have to learn". Naturally, you can't ask them to set up encryption themselves. Installing gpg and enigmail is a nontrivial task even for me. And you can't even set it up transparently, because gpg evidently decided that an empty passphrase is "insecure" and not to be allowed. Of course, they don't care that if t

  • Hold on... (Score:5, Interesting)

    by CajunArson (465943) on Tuesday March 16, 2010 @09:48AM (#31494592) Journal

    I need to actually read the case, but:
    1. Alice sends Bob a message
    2. Bob decides to post the message on Facebook or even, the police ask Bob for the message and Bob says: Sure here you go!
    3. Alice has no expectation of privacy from Bob because she chose to send him the message.

    The above situation is already well established as being perfectly fine from long before the time of the Internet. The meaning of the term "Third Party" is at issue here, and third party does *not* necessarily mean your ISP. Look at the stored communications act for the rules on how email is treated by law enforcement. If you send your email to somebody (the "third party") that somebody can choose to hand it over to anyone. However, this isn't any different than sending a letter over the Pony Express and having the person you sent the letter to read it in the town square for everyone to here.
    Moral of the story: If you don't trust a third party, don't send them information!

    • Re: (Score:3, Informative)

      by CheshireCatCO (185193)

      Read the article, or even the summary posted here. It's not a matter of the recipient (or sender) posting the contents, it's a question of the ISP (hence: third party) revealing the information.

      Now what's missing from this is that the investigators had a subpoena according to the article. I'm not clear on how this violates the Fourth Amendment, in that case. Isn't that exactly what we want the government to do and to be able to do when investigating an alleged crime?

      • That's the problem.. the article is slashdotted and I don't trust a summary. In a legal case the term "third party" is not necessarily what you think it means. If a plaintiff is suing a defendant then a "third party" could be anyone the plaintiff chose to send an email to.
        This is from memory so it may be a little inaccurate but here is what I remember of Federal law on the subject: The stored communications act puts email in different categories depending upon whether it has been "read" or

      • Re: (Score:3, Funny)

        by NotQuiteReal (608241)
        I read the article, and I'll quote it in full, here: "Error establishing a database connection".

        That was not too enlightening. However, my question is about this "after delivery" bit.

        For server based mail (web based or even Outlook, etc.) the mail stays at the "ISP" even after it has been "delivered". However, if I pull a message from a POP server, with the delete option, the message should "legally" no longer be on the server after delivery, right?
        • I read the article, and I'll quote it in full, here: "Error establishing a database connection".

          Seems clear as day to me... No, wait! The other thing: Slashdotted!

      • A Subpoena is NOT the same as a Search Warrent. A subpoena is a demand that one testified in court.

        • by sammy baby (14909)

          (IANAL)

          Um... no. People can be subpoenaed to testify in court, but documents and records can also be subpoenaed. The difference is that if you are subpoenaed for documents, you are expected to turn them over, whereas if a law enforcement officer obtains a search warrant, he can go take them himself. More or less.

          • Yes, but a subpoena isn't intended to break your fourth amendment rights. You can contest a subpoena, this person didn't have a chance to contest the subpoena because his ISP was subpoenaed not him. A subpoena has a much much lower burden of proof than a search warrant.

      • Now what's missing from this is that the investigators had a subpoena according to the article.

        A subpoena is basically a "request for appearance/data to be used in court". Basically, if I subpoena you for information, that means that you must provide me with the data. The difference in this case, is that the data was taken (Which, according to US law, requires a warrant). Sure, you can be held in contempt of court if you don't abide by a subpoena, but they cannot use a subpoena to "take" data, it must b

    • by Sockatume (732728)

      That's how the Fourth Amendment works. However in this case, they've taken it to mean that if the postman were to copy the letter in transit, because it's likely to get lost for example, then it'd be okay for the government to seize that copy, so long as Bob gets his copy first.

    • by hacker (14635)

      If you send your email to somebody (the "third party") that somebody can choose to hand it over to anyone.

      This is PRECISELY why you encrypt emails to recipients... there is absolutely no doubt that there was an expectation of privacy, when the receiver has to decrypt the email using a private key, to read it.

    • Re:Hold on... (Score:5, Interesting)

      by ircmaxell (1117387) on Tuesday March 16, 2010 @10:04AM (#31494902) Homepage
      But that's not what happened in this case. What actually happened was:
      1. Alice sends Bob a message
      2. Bob receives the message from his ISP
      3. Government goes to Bob's ISP and demands a copy of the email

      So in this particular case, Bob's 4th amendment right was violated, and the data was used against Alice. So the fact that Alice's rights weren't compromised in the fetching of the data is meaningless because someone's rights --namely Bob's-- were... And that's where this ruling becomes retarded. Not because Bob chose to disclose the contents, but because the government willfully violated Bob's rights to incriminate Alice...

      But there is another flaw in your argument. Bob cannot go and post an email that Alice sent to him on Facebook (well, legally at least). Even though Alice doesn't have 4th amendment rights over Bob's copy, she still does hold copyright over the message. She granted him an implicit license to read the work when she sent it to him. She did not grant a license to show that email to anyone else...

      • Re: (Score:3, Insightful)

        by bmo (77928)

        Bob cannot go and post an email that Alice sent to him on Facebook

        Huh?
        What?

        Name a single court case where this was true in the US. Even those "this is confidential blah blah blah delete if received in error blah blah" "warnings" are nothing but attempts at intimidation with no basis in law.

        --
        BMO

    • by strech (167037)

      I need to actually read the case, but:
      1. Alice sends Bob a message
      2. Bob decides to post the message on Facebook or even, the police ask Bob for the message and Bob says: Sure here you go!
      3. Alice has no expectation of privacy from Bob because she chose to send him the message.

      The above situation is already well established as being perfectly fine from long before the time of the Internet. The meaning of the term "Third Party" is at issue here, and third party does *not* necessarily mean your ISP. Look at t

      • by strech (167037)

        Note that "wrong" refers to your comment as an analysis of the case in question. Your example is strictly accurate, it just isn't what happened in this case, either by the summary or article, and using it as the "moral of the story" is wrong.

  • by MikeRT (947531) on Tuesday March 16, 2010 @09:53AM (#31494682) Homepage
    To the outrage of a number of people I've met, I've suggested that the legal profession is actually not inherently an extremely intellectually rigorous profession on the grounds that most of its "complexities" are what programmers and engineers call "hacks" and in more layman terms, "making shit up as you go along." Exhibit A:

    To see where the 11th Circuit is getting this argument, you need to know a little bit about how the Fourth Amendment protects postal mail and packages. The Fourth Amendment ordinarily protects postal mail and packages during delivery. The same rule applies to both government postal mail and private delivery companies like UPS: As soon as the sender drops off the mail in the mailbox, both the sender and recipient enjoy Fourth Amendment protection in the contents of the mail during delivery. When the mail is delivered to the recipient, the sender loses his Fourth Amendment protection: The Fourth Amendment rights are transfered solely to the recipient. In practice, this works pretty simply: Each party has Fourth Amendment protection in the mail when they’re in possession of it, and both the sender and receiver have Fourth Amendment rights in the contents of the mail when the postal service or private mail carrier is holding the mail on their mutual behalf.

    Exhibit B:

    The Supreme Court “consistently has held that a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties.”

    Now, a person of **reasonable** intelligence has to ask why the Post Office is holding it in care of the parties and an ISP is not. Even if you expand this out, each party in the routing from point A to point B of the packets of the email message is holding that data temporarily in care of party A until it reaches the email provider of party B who, in turn holds it in care of party B. The very essence of this is that each third party is acting, in a daisy chained relationship, like the Post Office with respect to the transportation of that communication.

    Mr. "I have a doctorate in law [wikipedia.org] judge Joe Shmoe" apparently doesn't have the basic sense once attributed to the peasantry to apply the existing rulings to a new scenario. It's not rocket science. There is no reason why email should be subjected to a different standard than snail mail, unless that standard is even more restrictive of the government since some email systems even go so far as to use systems like SSL to explicitly add a level of privacy expectation to the communication not readily had by the average person with snail mail.

    • Re: (Score:3, Insightful)

      by demonlapin (527802)
      Your snail mail enjoys no protection if, as on a postcard, there is no attempt to shield its contents from public view. Encrypt your email and things may change (IANAL, don't know for sure if they do - e.g., would it then be permissible to brute-force any encryption without a warrant, or does the mere act of encryption indicate an intent that something should be private?)
  • by EXTomar (78739) on Tuesday March 16, 2010 @09:55AM (#31494726)

    Email is like sending a message on a postcard. How much expectation of privacy did you have doing that? The onus is up to the sender to protect the message instead of whining about any number of people who can and will inspect the email or the back of the postcard as it goes through the system.

    • Re: (Score:2, Informative)

      by tizzo (1616443)
      It's worse than that actually. From when a postcard leaves your mailbox until it arrives at the mailbox of the recipient, only the postal employees who handle it have legal access. If the recipient throws it away without destroying it, then it becomes publicly accessible. But mail in transit, even postcards, are protected by law from being accessed by any but specific people. Email on the other hand is placed on a wide open, publicly accessible, shared channel. Most people don't have the interest or wh
    • I'm not the only one that PGP encrypts my postcards, surely? The mail delay on vacations is pretty inconvenient, but hey.
    • by Null Nihils (965047) on Tuesday March 16, 2010 @10:31AM (#31495366) Journal
      I strongly disagree. I've said it before [slashdot.org], I'll say it again: 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. (You can encrypt the text of your postal-mail letters, but one already has an expectation of privacy, so few people bother. Same as e-mail.)

      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" (via GUI icons, ISP adverts, etc), the average user is not unreasonable in expecting privacy.

      It should be obvious that the 4th amendment applies to e-mail.
  • Judges, lawyers - fools and buffoons to every last man and woman among them. They think they understand logic. They boast about their reasoning prowess. Ever tried to translate any law into code a computer can parse?

    They're all a bunch of script kiddies without a computer to puke their nonsense back at them. True logic lies in the machine.

    If Congress had to write laws that were held to anything remotely approaching the standard of what computers require of programmers there would be about 3 pages left.

    • If Congress had to write laws that were held to anything remotely approaching the standard of what computers require of programmers there would be about 3 pages left.

      Haha, good one. That, or you must not have been programming for very long... it's amazing the twisted and convoluted ways that programmers come up with to do the simplest of things. Check out "CodeSOD" on dailywtf.com sometime.

  • by ral (93840) on Tuesday March 16, 2010 @10:08AM (#31494966)
    In TFA Volokh, a distinguished law professor, explains why he thinks the court got it wrong:

    For a real-world example, imagine you write a letter and photocopy it before you put it in the mail. You file the copy in your closet and send the original. During the course of delivery, the original is protected by the Fourth Amendment; when it arrives, you lose Fourth Amendment protection. But the fact that you lose Fourth Amendment protection in the original does not mean that the Government can break into your house and read the copy you made. Conversely, the fact that the recipient of the mail does not have Fourth Amendment rights in the copy does not mean that the government can break into the recipient's house to read the original.

    • Re: (Score:3, Informative)

      by geekoid (135745)

      http://www.ca11.uscourts.gov/opinions/ops/200911897.pdf [uscourts.gov]

      "Rehberg does not allege Hodges and Paulk illegally searched his home computer for emails, but
      alleges Hodges and Paulk subpoenaed the emails directly from the third-party
      Internet service provider to which Rehberg transmitted the messages."

      So there was a subpoena, and the court says when you send someone information, the receiver can share your letter with anyone.

      I may have missed it, but I didn't red where the government broke into anyones home without

  • For reference, here is the text of the appellate court judgment. [leagle.com]

    IANAL but, wow! I had no idea how bad this could be! The story from the judgment is that some guy sent faxes to a hospital complaining and mocking the management. As a favor, some local prosecutors investigated and set up false prosecution INCLUDING FALSE TESTIMONY to a grand jury. They subpoenaed everything including emails and phone calls.

    The long and the short of it is that, because they are prosecutors, they are given absolute immunit

You have a tendency to feel you are superior to most computers.

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