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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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  • 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.

  • 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?
  • 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?
  • 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: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:Other Amendments (Score:3, Interesting)

    by Pojut (1027544) on Tuesday March 16, 2010 @10:01AM (#31494850) Homepage

    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: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:Other Amendments (Score:3, Interesting)

    by roaddemon (666475) on Tuesday March 16, 2010 @10:12AM (#31495044)

    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:2, Interesting)

    by crashumbc (1221174) on Tuesday March 16, 2010 @10:14AM (#31495080)

    funny, because there are MANY places in this country where you can't do that... Just because you happen to live in Texas doesn't mean the 2nd isn't being violated.

  • 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 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:Other Amendments (Score:3, Interesting)

    by ElectricTurtle (1171201) on Tuesday March 16, 2010 @10:29AM (#31495330)
    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 going on four branches total) because they don't have policy set by faceless functionaries at some huge out-of-state HQ.
  • Re:Other Amendments (Score:3, Interesting)

    by Pojut (1027544) on Tuesday March 16, 2010 @10:29AM (#31495338) Homepage

    Actually, I live in Maryland...which has some of the most strict gun laws in the nation. Thanks for making assumptions though, I appreciate it.

  • Re:Other Amendments (Score:3, Interesting)

    by bsDaemon (87307) on Tuesday March 16, 2010 @10:31AM (#31495354)
    The sad thing is, a naturalized citizen probably has a higher likelihood of actually knowing this than most natural-born citizens under a certain age. For what it's worth, I got the highest score in my school on the US History state assessment, which I finished in about 45 minutes and still found to be harder than the AP exam, and I am a natural-born citizen... I just didn't sleep through civics class. however, I suspect the GP to be a foreigner not being sent through the ringer of the naturalization process, which is pretty rigorous. Many of the people I've met who knew history and civics the best were naturalized citizens, but the carrot is there for them to bother to learn it.
  • Re:Other Amendments (Score:1, Interesting)

    by Anonymous Coward on Tuesday March 16, 2010 @10:33AM (#31495382)
    Or during wartime. Good thing we have this "War on Terror", to ensure that we're always in wartime from now on. I'm sure our current Supreme Court would have no problem ruling that "time of war" does not require an actual declared war.
  • by commodore64_love (1445365) on Tuesday March 16, 2010 @10:40AM (#31495504) Journal

    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 control by an independent authority."

    That's what we need to add to the US Constitution.
    We should be secure in our persons, papers, and effects
    even when those "papers" are held by a third-party ISP.

  • 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?

  • A proper ruling. (Score:2, Interesting)

    by The Bastard (25271) on Tuesday March 16, 2010 @10:59AM (#31495814)

    People seem to think that e-mail is the equivalent of a sealed envelope letter. It's not. It's the equivalent of a picture postcard, open to the world to see, and therefore bereft of 4th Amendment protections ("plain sight" rule).

    If you want 4th Amendment protections for your email, place it in an "encryption envelope" with your favorite e-mail encryption app (PGP, OpenPGP, proprietary, etc). Otherwise, quit yer whining.

  • by Anonymous Coward on Tuesday March 16, 2010 @11:00AM (#31495840)

    I hate to break it to you, but this ruling also established the basis for breaking 4th amendment protections for the contents of your phone calls.

    VOIP has always relied on packet-switching (with its associated store-and-forward basis) for calls and in recent years the PSTN has also been converting from circuit switching to packet-switching.

    Delivering your phone call content via packet-switching inherently requires the phone carrier to make and store (at least temporarily) a copy of your phone call content in the same way that delivering a copy of your email requires your ISP to make and store a copy of your email (and that applies regardless of whether you use your ISP's mail server or run your own). Under the reasoning established in this ruling, if your phone carrier retains their copy of your phone call content after delivery of that content then you lose your 4th amendment protections regarding disclosure of that content...

    Now may be a good time to live in one of the states which require two-party consent for voice recording...

  • by Chemisor (97276) on Tuesday March 16, 2010 @11:02AM (#31495874)

    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 the nontechnical user has to remember a passphrase and to enter it to email to you, well, they'll just not send you any mail.

    Then there's the problem of most people using webmail. The desktop mail client is going extinct and all the regular users are moving to gmail, where, like on any other webmail, you can't have encryption without surrendering your private key to the provider.

    Oh, and to add insult to injury, my mail forwarder (www.nearlyfreespeech.net) adds a ***UNCHECKED*** prefix to all encrypted mail it forwards. No, Mom, it really is safe to open my email. ***UNCHECKED*** just means the forwarder couldn't read it and verify that it has no viruses in it. What's a forwarder? Well, it's a...

  • Re:Other Amendments (Score:3, Interesting)

    by ElectricTurtle (1171201) on Tuesday March 16, 2010 @11:03AM (#31495906)
    I think there is a better-than-fair chance of incorporation by the current SCotUS in the Chicago case, to which I'm looking forward with much anticipation. Also, don't forget that almost all states (44 according to wikipedia already ref'ed [slashdot.org] by jdgeorge) have state constitutional provisions that approximate/mirror the federal constitution.
  • Re:Other Amendments (Score:3, Interesting)

    by Low Ranked Craig (1327799) on Tuesday March 16, 2010 @11:20AM (#31496168)
    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.
  • Re:Other Amendments (Score:2, Interesting)

    by j-turkey (187775) on Tuesday March 16, 2010 @11:59AM (#31496818) Homepage
    You have an interesting account of American history. I also find it interesting that you use the terms "we" and "us" so much. Unless you're very, very old; you were not alive during the Civil War. Reconstruction was a very long time ago, we're all Americans again. Why do you write about the Civil War as if it happened to you, and you were personally persecuted?
  • Re:Other Amendments (Score:4, Interesting)

    by ElectricTurtle (1171201) on Tuesday March 16, 2010 @01:09PM (#31498010)
    I don't disagree with any of your very pithy analysis, but the sentiment of the following is dangerous:

    You miss the purpose of his campaign. It was not for fun -- it was to demoralize the heart of the insurgency. And it worked, however nauseating it may be in hindsight.

    This sort of ends-justify-the-means, history-is-written-by-the-victors mentality is insufficient justification for what should have been and should still be war crimes. I'm a very hawkish, unilateral guy, but in order to have moral authority it is necessary to be 'better' than your adversary. I agree that the South is not some saintly victim, they did their own evils not least of which was Andersonville. That is not justification for more evil. You can fight for the 'right' things the 'wrong' way, which includes the carpet bombing of Dresden and other German cities, the firebombing of Tokyo and other Japanese cities, and the saturation bombing and other indiscriminant behavior in Vietnam.

    It would have been better to draw out the conflict, even to a stalemate, than it is to have won by such efforts. It was a stained and sullied victory, which bred generations of continued emnity. If not for external forces (later wars) and homogenization driven in part by carpetbagging, there probably would have been another Civil War already, driven by the treatment of the South by the North (analogous in some way perhaps to the treatment of the Germans by the French after WWI being catalytic in priming German society to accept militarism and aggression leading to WW2).

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