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Google Backs Yahoo In Privacy Fight With DoJ 173

Posted by kdawson
from the in-yer-corner dept.
PatPending sends in CNET coverage of Yahoo's new allies in its fight with the DoJ to protect the privacy of its customers' email stored in the cloud. Google, the EFF, the CDT, and others have filed a friend-of-the-court brief arguing that the DoJ should be required to obtain a search warrant signed by a judge in order to compel Yahoo to turn over users' email messages. "Does email stored in the cloud have the same level of protection as the same information stored by a person at home? No, according to the Obama administration's Assistant US Attorney Pegeen Rhyne, who wrote in a government motion filed last month, 'Previously opened e-mail is not in "electronic storage." This court should therefore require Yahoo to comply with the order and produce the specified communications in the targeted accounts.' (The Justice Department's position is that what's known as a 2703(d) order — not as privacy-protective as the rules for search warrants — should let police read email.)" Update: 04/16 23:26 GMT by KD : he government backed off: "Saying the contested e-mail 'would not be helpful to the government’s investigation,' the authorities withdrew demands for e-mail in a pending and sealed criminal case." So no court ruling and no precedent.
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Google Backs Yahoo In Privacy Fight With DoJ

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  • Privacy (Score:3, Insightful)

    by kyrio (1091003) <slashdot@@@lurkmore...com> on Friday April 16, 2010 @11:29AM (#31872490) Homepage

    Is in your imagination.

    • by BobMcD (601576)

      Privacy is in your imagination.

      All concepts are. The question is deeper that that, and goes to whether or not we're imagining the same things.

  • 4th Amendment (Score:5, Insightful)

    by Anonymous Coward on Friday April 16, 2010 @11:31AM (#31872506)
    • by Shakrai (717556) on Friday April 16, 2010 @11:34AM (#31872534) Journal

      Clearly. If the framers had meant to include the internet in the 4th amendment it would have been worded along the lines of: The right of the people to be secure in their persons, houses, papers, series of tubes, and effects, against unreasonable searches and seizures.....

    • Re:4th Amendment (Score:5, Insightful)

      by MikeBabcock (65886) <mtb-slashdot@mikebabcock.ca> on Friday April 16, 2010 @11:44AM (#31872678) Homepage Journal

      Yeah, I'm quite certain (as are you I believe) that cloud storage of my E-mail which is obviously restricted to me via a password system would constitute my effects, just as much as a bank safety deposit box would.

      • IANAL but this seems to get close to the idea of itellectual property. If "effects" excludes email from protection because it's not physically tangible property, then why would IP enjoy protection? Of course I'm probably way off here.
    • Re:4th Amendment (Score:5, Insightful)

      by skine (1524819) on Friday April 16, 2010 @11:44AM (#31872682)

      My email and safe deposit box are held by third parties, each of which has the ability to look inside.

      I would hope that the government needs a warrant two inspect the contents of my safe deposit box, and more importantly, that my bank would not allow them access without a warrant.

      The same goes for my email.

      • by cawpin (875453)

        each of which has the ability to look inside.

        Um, no? Your safe deposit box should require TWO keys to open.

        • each of which has the ability to look inside.

          Um, no? Your safe deposit box should require TWO keys to open.

          While true, there are (expensive) ways for the bank to open the box if you lose both keys. With a warrant, I see no reason why they wouldn't use this method.

  • by WrongSizeGlass (838941) on Friday April 16, 2010 @11:31AM (#31872508)
    Not trolling ... but Google seems to have found its balls again. It stood up to China and now its trying to stand up to the DoJ. Of course, backing Yahoo in this fight benefits Google as well. There's nothing wrong with protecting your own interests if you're also doing the right thing.
    • by will.perdikakis (1074743) on Friday April 16, 2010 @11:43AM (#31872670)
      Interestingly enough, there are actually people that would be willing to give up the privacy of their email if it makes the world safer.

      You hear it all the time... "I am willing to take more time going through airport security, since it will make the skies safer." This, along with many other one-liners roll our forefathers over.

      They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety. -Ben Franklin
      • by Shakrai (717556) on Friday April 16, 2010 @11:59AM (#31872844) Journal

        You hear it all the time... "I am willing to take more time going through airport security, since it will make the skies safer."

        I want to smack those morons. The only thing was required to prevent another 9/11 style attack was a locked cockpit door and the understanding that the pilots will LAND THE PLANE IMMEDIATELY if the shit hits the fan. The passengers and crew aren't going to roll over like sheep anymore. Every attack on an airline since 9/11 (and even on 9/11, see Flight 93) has been foiled by the passengers.

        That's all we needed. No body scanners, no liquids ban, no forced removal of your shoes, no security theater at all. Just plain fucking common sense. The fact that we soon won't be able to board an airplane without some Government bureaucrat looking at our genitals on a computer monitor tells me that the terrorists won.

        • Re: (Score:2, Interesting)

          by bartoku (922448)
          I love your comment!

          I always wondered why the cockpit was not just locked and all. Was it because most hijackings before were not suicide missions and procedure was to try and save the passengers by negotiation or something? Are there any authoritative sources saying what you are saying that I can reference?

          Along the same lines a friend of mine would point out that the Empire State building stood up to a collision from a WW2 bomber plane and only lost three floors to fire. If we would just build are t
          • by SEE (7681)

            the Empire State building stood up to a collision from a WW2 bomber plane and only lost three floors to fire

            What took down the towers was the fuel-fed fire weakening the structural beams, not the impact. The B-25 carries a maximum of 670 gallons of fuel, while a 767ER carries 23,980 gallons, more than 35 times as much. Further, in both cases it was a flight from Boston to New York City, which was a much larger percentage of the B-25's flight range than a 767's. So, there was around two orders of magnitude more fuel feeding the fires at each WTC tower than there was feeding the Empire State Building fire, and t

          • I always wondered why the cockpit was not just locked and all. Was it because most hijackings before were not suicide missions and procedure was to try and save the passengers by negotiation or something?

            Pretty much. Previous hijackings basically consisted of "Take me to Some Island Country." The September 11, 2001, hijackings were assumed to be more of the same, in which case the safest course of action is to just go along with the hijackers and land wherever they tell you to. Since then (and probably into the future), people have instead assumed that they're going to be killed in the hijacking, so they will do whatever they can to try to limit the damage and casualties, even if they still end up being kil

          • I always wondered why the cockpit was not just locked and all.

            Just last year a passenger had to land a plane with ATC guidance after the pilot died. Not much you can do if the cockpit door is locked in that situation.

            http://www.cnn.com/2009/US/04/13/florida.plane.emergency/index.html [cnn.com]

            • Completely different situations. It was a private flight, where security measures are completely different. In commercial airflight there should always be a co-pilot.

        • But....Think of the Children!

        • You hear it all the time... "I am willing to take more time going through airport security, since it will make the skies safer."

          It's because you missed a word they said: "seem", as in "I am willing to take more time going through airport security, since it will make the skies seem safer."

        • The only thing was required to prevent another 9/11 style attack...

          And the whole thing would likely have been prevented if our security agencies would have actually worked together and shared information instead of each hoarding a piece of the puzzle.

          PBS had an interesting show [pbs.org] on it.

      • by WrongSizeGlass (838941) on Friday April 16, 2010 @12:01PM (#31872866)
        Since when is quoting Ben Franklin considered "trolling"? Sometimes the truth is the truth whether it hurts or not. There are things that we as Americans shouldn't be proud of, and watering down our individual rights should be one of them
      • by russotto (537200)

        You hear it all the time... "I am willing to take more time going through airport security, since it will make the skies safer." This, along with many other one-liners roll our forefathers over.

        The fools who said that in the first place were thinking of lines for metal detectors. If after the DB Cooper incident the government had gone straight to baggage inspections, crazy liquids policies, random pat-down searches, no-fly lists, and the like, people would have freaked. Now that the frog is well and truly

      • by ArcherB (796902)

        Interestingly enough, there are actually people that would be willing to give up the privacy of their email if it makes the world safer.

        You hear it all the time... "I am willing to take more time going through airport security, since it will make the skies safer." This, along with many other one-liners roll our forefathers over.

        Um, you could charter a plane and fly with no searches. You could drive or take a bus, boat or train to your destination. See, when you purchase an airline ticket, you are agreeing to be searched and stuffed into a pressurized tube and launched to over 10,000 feet at over 600 mph. This is why the Fourth does not apply. Well, that and the fact that you are not guaranteed all of your rights, all of the time. I could bring up the "fire in a crowded theater" example, but instead I will bring up the "why ca

        • Besides, as a fellow passenger, I wouldn't get onto a plane unless I was fairly certain that everyone else on that plane was also searched, just as I was.

          Except they're not. Folks are being randomly picked for 'extra attention' and others are sailing through without a problem.

      • Interestingly enough, there are actually people that would be willing to give up the privacy of their email if it makes the world safer.

        Put a magnet in Ben Franklin's pocket and place a coil by the casket, and his spinning in his grave would power a small town!

    • Re: (Score:2, Interesting)

      Google has always had plenty of balls. It stood up to gov when it asked for IP addresses in (supposed) child pornography case. The issue then was that it was overly broad, and *our* gov would not guarantee it would not use the info for other purposes. Google said "hell no" and went to court, and got the data anonymized and MUCH smaller amount. In the meantime, Y!, AOL, and Mr. Softee - no balls between 'em - had already complied. I think Google sincerely thought they could change China gradually from
  • by Shakrai (717556) on Friday April 16, 2010 @11:32AM (#31872524) Journal

    I'm glad we elected someone with a through understanding of constitutional law and a healthy respect for our civil liberties. It's not like he reversed himself [wikipedia.org] on the issue before even becoming President or anything....

    Meet the new boss, same as the old. When will we learn? Vote Democrat or Republican -- the only difference is which order you will lose your rights in.

    • by trurl7 (663880) on Friday April 16, 2010 @11:41AM (#31872656)

      That reversal is the reason I dislike Obama.
      I'm glad people still remember that!

      • by Shakrai (717556) on Friday April 16, 2010 @11:46AM (#31872716) Journal

        I had donated a sizable sum of money (nearly $500) to his campaign before that reversal. After the reversal I wrote them a pretty scathing letter and received a refund of my donation. I donated every penny to the EFF. They've never lied to me and I assumed they needed the money more than Obama for America did.

        I still have an image of that check lying around somewhere. I was very proud of it.

        • by jDeepbeep (913892)

          I still have an image of that check lying around somewhere. I was very proud of it.

          I'd be more interested to see a scan of the scathing letter.

      • by Yvanhoe (564877)
        Question from a European who, too, was very disappointed of this reversal : has he been giving reasons for that ? Did he say it was for security ? did he present it as a compromise with republicans ? did he deny changing positions ?
    • Yeap, "... more of the same, and much MUCH worse!"

    • Re: (Score:3, Interesting)

      by Wardish (699865)

      /tinfoil hat

      One might wonder why all presidents appear to quickly move to the exact same positions regardless of their prior beliefs. /tinfoil hat off

      One might wonder.... hehehehe

    • by KiahZero (610862)

      The lawyer in question, Pegeen Rhyne, holds himself out as being appointed as an AUSA back in 2001, which would make him a Bush appointee. It's also exceedingly unlikely that this position got put before the Attorney General, let alone the President.

    • A pity Sergey Brin was born in Russia. If this trend continues, I'd vote for him next time round.

  • by al0ha (1262684) on Friday April 16, 2010 @11:33AM (#31872530) Journal
    On one hand they tell the users on their services to hold no expectation of privacy, then join a fight to keep information from the Government. Ah of course, providing information to the Government provides no profit. Hmmm I wonder how they would react if the Government offered to pay for the same information they are currently requesting be provided free?
    • by MaWeiTao (908546)

      Legally, Google probably couldn't guarantee privacy if it wanted to.

      I think the real irony is that there are many people out there who claim to value privacy but openly embrace social and national defense programs that gives our government direct access to personal information and enables them to control our lives more thoroughly.

    • by jDeepbeep (913892)

      Hmmm I wonder how they would react if the Government offered to pay for the same information they are currently requesting be provided free?

      The US government paying google with US taxpayer dollars to get information from google's international (read: not necessarily US taxpayer) end users? I don't see that going over well.

    • He can't do that to our pledges
      Only we can do that to our pledges
  • What? (Score:5, Insightful)

    by MaWeiTao (908546) on Friday April 16, 2010 @11:33AM (#31872532)

    "Previously opened e-mail is not in electronic storage."

    I'm still trying to wrap my head around this. If these emails can be accessed at a later date they're obviously being stored somewhere. Now I lose my right to privacy because I've opened an email?

    What exactly is the problem with just getting a search warrant?

    • by Shakrai (717556)

      What exactly is the problem with just getting a search warrant?

      I'm not sure but I bet you $100 it involves child pornography or terrorism.

    • Re:What? (Score:4, Insightful)

      by MikeBabcock (65886) <mtb-slashdot@mikebabcock.ca> on Friday April 16, 2010 @11:42AM (#31872664) Homepage Journal

      The fact that due process frequently restricts the police to acting justly instead of going on fishing expeditions.

    • Re: (Score:3, Interesting)

      by unr3a1 (1264666)

      The problem with getting warrants is that they take time to get. They have to hand information over to a Judge to look at so they can determine if there is enough probable cause for a search warrant, and if they Judge denies it, no warrant, aka no searching.

      If the Judge DOES issue the warrant, they have to notify you at some point about the search, whether it be before they search, while they search, or after they have searched.

      If they can "legally" make it so that they don't need a warrant to acquire cert

      • by Nadaka (224565)

        one problem with email from home, most residential providers restrict the email port.

        Another thing is: if the issue is alerting the suspect, then you use a wiretapping warrant.

        If the problem is no due cause? then you are shit out of luck.

        • by Joce640k (829181)

          Most of them will open it if you ask them.

          If not, a paid-for domain with email is dirt cheap these days - three bucks a month should cover it.

      • Re: (Score:3, Insightful)

        by natophonic (103088)

        The problem with getting warrants is that they take time to get.

        My brother-in-law is a homicide detective. According to him, he can get a warrant in under 30 minutes, if it's important.

        We'll be presented with all manner of 24-esque ticking-time-bomb-in-the-school-basement scenarios to illustrate why and when this warrant-less search power would be used. In reality, it will be used to dredge up dirt on status-quo-threatening politicians and political activists that will then be mysteriously leaked to the pre

      • The problem with getting warrants is that they take time to get.

        If you're saying that the problem is that evidence may be destroyed before law enforcement can seize it, there's a very simple solution to that. Police can conduct the search immediately, then get the warrant from the judge the next day. There is absolutely no valid excuse for not getting a search warrant.

    • What exactly is the problem with just getting a search warrant?

      Maybe "clouds" aren't in any single legal jurisdiction so they figure it will be as hard for you to fight their actions as it would be for them to get their warrant?

    • Re: (Score:3, Insightful)

      by jDeepbeep (913892)

      What exactly is the problem with just getting a search warrant?

      It is not convenient to have to bother with one.

  • Makes no sense (Score:5, Insightful)

    by thepike (1781582) on Friday April 16, 2010 @11:34AM (#31872542)

    How are previously opened emails not in electronic storage? Are they electronic? Yes. Are they being stored? Yes. Thereby electronic storage. And how does the previously opened or unopened even come into play here? When I open my mail (and keep it in a filing cabinet in my house) is it any less mine than it was before I opened it? Would they still need a search warrant to find it, or is it not in "hard storage" because I opened it? I don't understand why people thing that storing things in the cloud makes them less mine (legally). When I rent a storage space barn they property I put in it is still mine, so if I'm using online servers to store information, that information should still be mine.

    At the same time, I'm glad to see Google, the EFF, and such coming to help Yahoo. Obviously it's because they don't want precedent set, but still it's nice to see them playing nice.

    • by Cytotoxic (245301)

      Come meet the new boss. Same as the old boss.

      Sheesh. 40 years of getting fooled again.

    • by d474 (695126)
      Exactly. This "opened" and "not opened" email vernacular are just arbitrary virtual terms designed to mimic real world snail mail terminology. Email is just a digital file and whether or not somebody has read the contents of the file has nothing to do with the governments authority (or lack there of) to read it without warrant.
    • by omnichad (1198475)

      As a side note, don't forget that the White House considers unopened emails to be undelivered ;-)

  • OK DoJ (Score:5, Interesting)

    by aztektum (170569) on Friday April 16, 2010 @11:35AM (#31872560)

    Then post all your already read e-mails to the Internet.

    • OK DoJ ... Then post all your already read e-mails to the Internet.

      (Those still stored offsite, that is.)

      While we're at it, post all your offsite filesystem backups, too. The same argument applies to them as you're using for the "opened" email.

      • While we're at it, post all your offsite filesystem backups, too. The same argument applies to them as you're using for the "opened" email.

        Thought I should make that more explicit. Filesystem backup services (especially the network/"cloud" based ones) are next if they get away with this.

        (Or even if they don't win it. They'll just claim the loss was because it was "mail" and doesn't apply to "files". Win and they have the precedent. Lose and they start fresh.)

  • Remember the thinkgeek.com tee shirt "i read your e-mail"? We as the nerd community have known for years that if its on a computer it's fair game for any one clever enough to find a way in. The only secure system is the one that isn't networked and doesn't do anything that requires personal information of any kind, so that leaves us the NES and the TI85. Now the government want's to play with this power. Who is shocked by this?
    • You can hook your TI-85 up to a computer connected to the internet.

    • Re: (Score:3, Interesting)

      by BobMcD (601576)

      Remember the thinkgeek.com tee shirt "i read your e-mail"? We as the nerd community have known for years that if its on a computer it's fair game for any one clever enough to find a way in. The only secure system is the one that isn't networked and doesn't do anything that requires personal information of any kind, so that leaves us the NES and the TI85. Now the government want's to play with this power. Who is shocked by this?

      This is like saying that the only secure home is the one buried underground and sealed off by concrete.

      The gaps are obvious. Law enforcement has restrictions placed upon it expressly due to those gaps, not in spite of them.

      My neighbor can peer in my windows, but this can't be used against me in court as it was illegal for him to do so. This doesn't mean I need to board up all my windows - that's simply not the logical solution.

      • I think we are talking about different levels of 'secure.' My house is secure, in that most people would not bother going into it. However if I had anything of high value I would get a vault and keep it locked up. And depending on how much it's worth, burying the vault into the foundation of the house would be the best place to keep it. However I'm fully aware that my home could be entered at any time without my connect by some one with criminal intent. Computers are the same way. Email is secure bec
  • by scorp1us (235526) on Friday April 16, 2010 @11:40AM (#31872640) Journal

    Well, this would put a damper on quite a few things if the government's motion is granted.

    And what is the implication if I just keep marking things as unread?

    4th Amendment:The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

    It does not say that papers and effects in our houses are protected. Rather it treats them separately, with no distinguishment between them. Also, "effects" does not solely mean "possessions" though it does certainly include them. I would contend that email is an 'effect'.

  • for the not-so-little guys! (i.e. google & co)
  • Slippery slope (Score:5, Insightful)

    by gurps_npc (621217) on Friday April 16, 2010 @12:02PM (#31872878) Homepage
    In used to dislike slippery slope arguments. They usually start by claiming A, even though is neccessary, should not be done because it will lead to Z. This ignores the fact that B-Y exist and we have a lot of precendents about NOT doing them, all of which prevent Z from being considered.

    But what I have seen happening with regards to internet privacy is a clear, real slippery slope. Mainly because of two factors:

    A. Is NOT and never has been neccessary. (I.e. if they can get a warrant to read my my snail-mail, they can surely get one to read my email.)

    B. Unlike the past centurey, technology now moves so quickly that lawmakers, judges and lawyers often are in the position of making judgments about things that they don't understand. So the slippery slope starts to be a real issue as they are forced to use less and less similar reference points as precedent instead.

    • by BobMcD (601576)

      Slippery slopes actually do exist, and as such identifying them in an argument doesn't do much to the argument itself.

      Take courtship, for example. It is the quintessential slippery slope. You start off by simply talking, and wind up having sex. Without the talking, no sex. With the talking, maybe sex, maybe not. Depends on the rest. But the path is there, and it is generally on the part of the court-er to nudge things towards the slippery end, rather than against it. The first request is a reasonable

  • I understand that "the man" is not allowed to go through my stuff without a warrant and stuff like that, and that I cannot invoke any "don't touch that!" type of rights when "the man" wants to go through my friends' and associates' stuff, in their attempts at finding out stuff about me. Are they now, however, required to jump through similar hoops to compel others to show them or give them stuff? If the police turn up at my mom's house and ask to see all the letters I wrote to her (email or snail-mail) does

  • I'm a yahoo customer. I like being able to access old emails from anywhere.

    Of course, those old emails contain letters to and from girlfriends. I wouldn't want anyone reading those.

    There are emails to and from the porn site that ripped me off. However secretly proud I am of the fact that I talked them into giving me a refund, I'd rather the feds not know about it.

    There are emails negotiating gun purchases from private individuals across the country. I followed all applicable laws, but you can't tell tha

  • I don't see why there is different treatment for mail, phone calls, email, SMS, online messengers, and so on. Never mind why there is differences depending on whether or not it has previously been read, or whether I'm using a pay phone.

    It's all communications and I (should) have an expectation of privacy. What's the fundamental difference between a letter that is transported using a network of mail-men and one transported by a network of computers?

    I don't care where it is "held". If I use a postbox I rent

  • In the UK the government can now open your postal mail [telegraph.co.uk].
  • ... to get a judge to sign a warrant. If they had to do that, that would totally stop abuses of power.

    not.

If A = B and B = C, then A = C, except where void or prohibited by law. -- Roy Santoro

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