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The Courts Communications Electronic Frontier Foundation Privacy

Fourth Amendment Protects Hosted E-mail 236

Posted by kdawson
from the decade-overdue dept.
Okian Warrior writes "As reported on the EFF website, today the US Court of Appeals for the Sixth Circuit ruled that the contents of the messages in an email inbox hosted on a provider's servers are protected by the Fourth Amendment, even though the messages are accessible to an email provider. As the court puts it, 'The government may not compel a commercial ISP to turn over the contents of a subscriber's emails without first obtaining a warrant based on probable cause.'"
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Fourth Amendment Protects Hosted E-mail

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  • Our email is safe!...kind of...
    • by Stargoat (658863) * <stargoat@gmail.com> on Tuesday December 14, 2010 @06:58PM (#34554684) Journal

      Now if only my balls were safe.

      I was Freedom Fondled last week. When were you? Remember, it's unpatriotic not to Opt Out!

      And when you are standing in the Opt Out Line, make certain to introduce yourself and shake the hand of your fellow Opt Out patriots.

      • by Anonymous Coward on Tuesday December 14, 2010 @07:33PM (#34555042)

        What would you do
        If you were asked to get fondled for freedom?
        What would you do
        If asked to let your junk take the sacrifice?

        Would you think about all them people
        Who gave up everything they had?
        Would you think about all them flight vets
        And would you start to feel bad?

        Freedom isn't free
        It costs folks like you and me
        And if we don't all get fondled
        The terrists will win, they will!
        Freedom isn't free
        No, there's a hefty in' fee.
        And if you don't get scanned by the TSA
        Who will?

  • by windcask (1795642) on Tuesday December 14, 2010 @06:48PM (#34554558) Homepage Journal

    Notice they said an Internet Service Provider's servers, not a small business, or a large enterprise, or a non-profit, or government of any kind. How many people do you know that still use the Email service that comes with their ISP?

    • Re: (Score:3, Informative)

      This would apply to hosted services, free or paid, as well, such as Gmail or Yahoo.

      • Re:ISPs only (Score:4, Insightful)

        by windcask (1795642) on Tuesday December 14, 2010 @07:01PM (#34554708) Homepage Journal

        This would apply to hosted services, free or paid, as well, such as Gmail or Yahoo.

        Maybe I'm being ridiculous, but I'd be more comfortable with the federal government reading my mail than Google.

        • by maxume (22995) on Tuesday December 14, 2010 @07:06PM (#34554778)

          Yeah, Nerdlington P. Noogler is going to read through all your correspondence and reveal to all his friends that you are fond of Lol-cats. The horror.

        • Re:ISPs only (Score:5, Insightful)

          by BitterOak (537666) on Tuesday December 14, 2010 @08:03PM (#34555366)

          This would apply to hosted services, free or paid, as well, such as Gmail or Yahoo.

          Maybe I'm being ridiculous, but I'd be more comfortable with the federal government reading my mail than Google.

          Really? Google doesn't have the power to prosecute you based on the contents of your e-mail, and deprive you of your liberty.

          • But, according to the various telecommunications acts passed over the years, if they become aware of criminal activities (such as child pornography trafficking) while they're inspecting your email, they're supposed to report it to "the authorities". And they (just like any ISP) are allowed to inspect *any* emails passing through their systems for purposes of performance monitoring and whatnot.

            This'd be a good place to start reading:
            http://www.fcc.gov/telecom.html [fcc.gov]

        • "Maybe I'm being ridiculous, but I'd be more comfortable with the federal government reading my mail than Google."

          Anything you put out openly in plaintext not using encryption on the net is being recorded by someone somewhere.

        • Maybe I'm being ridiculous, but I'd be more comfortable with the federal government reading my mail than Google.

          You are ridiculous. One, you can choose to use or not use Gmail. Two governments have killed more people than any business. That I know of the business that has caused the most deaths was Union Carbide, the Bhopal Disaster [wikipedia.org]. An estimated 15,000 people were killed during and after the spill. 15,000, now how many people have governments killed? In the 1994 Rwandan genocide [wikipedia.org] an estimated 800,000

          • by windcask (1795642)

            Two governments have killed more people than any business.

            I'm proud to live in a country that takes due process very seriously and I know my government wouldn't be reading my email without a good reason. Governments are not all the same; comparing Rwandan revolutionaries to respected world leaders like the US and Britain is both asinine and irresponsible. The recent Wikileaks documents haven't indicted the US government; they've vindicated it. If the biggest scandal we can come up with is the Secretary of State using spies on the head of the UN, you know we run a

            • by taucross (1330311)

              If the biggest scandal we can come up with is the Secretary of State using spies on the head of the UN, you know we run a pretty tight ship.

              Don't worry, there's still another 250,000 documents to be released. WikiLeaks will save the best till last.

        • While I agree that is ridiculous. It makes sense somewhat. If your mail is readable by the Government, well that's just uncomfortable and a potential liability and an open door to abuse.

          If your mails is readable by Google, then in addition of being searched for bombs and cilhd pron, you'll be searched for magazine subscriptions, sports equipment etc, with AIs analyzing you, psychologically profiling you, to find out not only what to sell you but how . And afterwards your information will be resold and reso

    • My address is [my first name]@[major provider]. It's ancient and I plan on keeping it.

      • by windcask (1795642)

        My address is [my first name]@[major provider]. It's ancient and I plan on keeping it.

        Wow! I want an email provider and DNS service that allows brackets and spaces!

        • by sconeu (64226)

          You think that's cool? My address is

          $USER@$MAJOR_PROVIDER

        • by fishexe (168879)

          My address is [my first name]@[major provider]. It's ancient and I plan on keeping it.

          Wow! I want an email provider and DNS service that allows brackets and spaces!

          I want an email provider and DNS service that allows metasyntactic variables.

          • by windcask (1795642)

            I want an email provider and DNS service that allows metasyntactic variables.

            Well, why didn't you say so in the first place, your_slashdot_username_here?

            • by fishexe (168879)

              I want an email provider and DNS service that allows metasyntactic variables.

              Well, why didn't you say so in the first place, your_slashdot_username_here?

              You'll have to excuse me for having been a small child at the time the appropriate RFCs were published.

    • Notice they said an Internet Service Provider's servers, not a small business, or a large enterprise, or a non-profit, or government of any kind. How many people do you know that still use the Email service that comes with their ISP?

      Courts rule on the circumstances presented in the case, which was an ISP. However, there is nothing in the reasoning applied in the decision that is particular to the ISP-customer relationship. It probably wouldn't apply to the business email of an employee where the seizure was

      • This is just like a Bank Safety Deposit box. You put stuff there for money, but it's equally tenuous to think owning a 18"x3"x9" box has any "expectation of privacy too" as the Bank has all the keys anyway. Except of course Banks protect YOUR property on THEIR premises even for legal measures, with extreme prejudice. This really isn't any different.

        The main difference is that ISPs are staffed by the geeks that don't know all their rights and have the money to afford the lawyers and Banks are staffed by Iv

        • by nospam007 (722110) *

          My safe is in my basement, together with my mail server, which is actually _in_ the safe.
          Opening the safe will shut off the mail server and you would have to know the Truecrypt passphrase to restart it and get at anything.

    • by Dunbal (464142) *

      Well if you want to split hairs, Internet Service Provider can mean anyone who provides any kind of service on the internet. Including small businesses, large enterprises, non profits and governments. So there. Now do you see why the lawyers will always win? :P

    • I rent web space from ipower.com, and route all my email through it.

    • servers, not a small business, or a large enterprise, or a non-profit

      Warrants are required for these to be searched.

      How many people do you know that still use the Email service that comes with their ISP?

      Almost everybody I know. Some use free services like Yahoo!, I do myself, but they also use the email provided by their ISP.

      Falcon

    • This ruling is just like needing a warrant to search your safety deposit box located at a bank. The government's case was that "they didn't need to tell you" in order to access the records because they weren't in your "possession". If you tried the same argument on a banker they'd laugh in your face and call the judge directly to bitch about you.

    • Well, the company owns your company email. So, ignoring a couple of idiot friends who inexplicably use their corporate email for personal purposes, they *all* use an Internet Service Provider for email, by definition. The Internet Service which is Provider-ed is "email," in that case. In fact, I provide my own email services - which makes me a small-scale ISP according to the law.

  • oh look (Score:5, Funny)

    by Ryanrule (1657199) on Tuesday December 14, 2010 @06:48PM (#34554562)
    pig just flew overhead.
  • by Entropius (188861) on Tuesday December 14, 2010 @06:53PM (#34554612)

    They can't legally compel them, but they can "request convincingly", I imagine. Does this mean that if the police ask my ISP for my email and my ISP hands the records over without a warrant, any evidence gotten that way is inadmissible? Does it mean I can sue my ISP?

    In a physical search, anyone living in a house can consent to a search of the property. Can Comcast voluntarily consent to a search of their customers' email?

    • by spinkham (56603) on Tuesday December 14, 2010 @07:04PM (#34554760)

      Not a lawyer, I don't even play one one TV.

      Yes, this means that evidence obtained in this manner in the future would be inadmissible in court. According to the brief, they decided in this case since the law had not yet been deemed unconstitutional and the officers acted in good faith, the evidence was still admissible for this particular case.

      Whether or not you can sue your ISP is a civil matter, pertaining to contract law, and this ruling should not apply.

    • Just a guess, but I'd wager that you agreed to let Comcast comply with any law enforcement requests when you signed their contract.

    • They can't legally compel them, but they can "request convincingly", I imagine. Does this mean that if the police ask my ISP for my email and my ISP hands the records over without a warrant, any evidence gotten that way is inadmissible?

      Essentially, yes (it means that it is just as inadmissible as any other evidence obtained in violation of the Fourth Amendment, but there are circumstances where such evidence is not excluded -- including, particularly, the case at hand, in which Sixth Circuit found that the

      • ... including, particularly, the case at hand, in which Sixth Circuit found that the evidence need not be excluded because of the Government's good-faith reliance on a statute that, while the Court did find it unconstitutional, was not so clearly unconstitutional that reasonable law enforcement officers could not believe that it allowed what they used it to do.

        So much for the doctrine that an unconstitutional law is null and void from its inception, as is everything done under its sole authority.

        • So much for the doctrine that an unconstitutional law is null and void from its inception, as is everything done under its sole authority.

          The good-faith reliance exception to the exclusionary rule, which IIRC is nearly as old as the rule itself, has always been outside the scope of that doctrine (its not seen as contrary to it, since the exclusionary rule itself is simply a remedy to a Constitutional violation, not an independent Constitutional mandate, and the good-faith reliance exception is viewed as ess

          • Re: (Score:2, Funny)

            by Anonymous Coward

            The good-faith reliance exception to the exclusionary rule, which IIRC is nearly as old as the rule itself, has always been outside the scope of that doctrine (its not seen as contrary to it, since the exclusionary rule itself is simply a remedy to a Constitutional violation, not an independent Constitutional mandate, and the good-faith reliance exception is viewed as essential to the purpose of the remedy, which is to deter unconstitutional actions by law enforcement, which purpose -- the Courts have repeatedly held -- excluding evidence seized under provisions of statute that officers reasonably believed were constitutional does not serve.)

            Damn, that's some serious butchering of the English language.
            At least when people write software code instead of legal code we don't try to pretend that it is English.

    • by houghi (78078)

      In Belgium that would mean exactly that

    • by telso (924323)

      This sounds to me much more like a PO Box: correspondence is sent to it and kept in it, and even though the box is the physical property of the mailbox company, the contents are the legal, private property of the person renting the box. Police can't just go into a box unless they have probable cause (or exigent circumstances, like they think there's a bomb there or something smells weird, or is moving (e.g. an animal), say), and the mailbox company can't open it either even if it decides to comply with a v

  • Unfortunately, there's also nothing to compel an ISP not to hand it over anyway, just to play nice with law enforcement. If you really want privacy, you have to use proper encryption. Once you've sent it to someone else, you never know where it will end up. Anyone with access to it can CHOOSE to share it with anyone they want. It's a dark dismal world we live in.
    • by MoonBuggy (611105)

      Does the same thing apply to a physical mailbox (assuming it's rented, not owned, of course)? Logically the same rules would apply to a third party storing your personal messages, whether on paper or electronic.

      Sure, it's sometimes a problem to try to hammer new technologies into old legal frameworks, but this doesn't seem to be one of those cases.

  • Wow, a sensible ruling on internet privacy. Why do I have a sneaking feeling that this judge has stock in the company that's going to be supplying all the rubber stamps these warrants will receive?

    • Why do I have a sneaking feeling that this judge has stock in the company that's going to be supplying all the rubber stamps these warrants will receive?

      Which of the three judges on the panel are you referring to?

  • by MarkvW (1037596) on Tuesday December 14, 2010 @06:58PM (#34554672)

    The ruling might not be the same if the email is intercepted from some other source.

  • by igreaterthanu (1942456) * on Tuesday December 14, 2010 @06:59PM (#34554690)
    Just because it is illegal means nothing [wikipedia.org].
  • Let's say you use a Gmail address as your primary email instead of whatever's provided by the people who provide your internet connection. Do they count as an "internet service provider" here, or is this decision as narrow as it sounds?
    • Gmail may not be hosted in the US. Say the email is hosted in India and the Government there would like the US to approve a trade deal. It won't take much leverage to get a copy of your email.

  • by bughunter (10093) <.ten.knilhtrae. .ta. .retnuhgub.> on Tuesday December 14, 2010 @07:02PM (#34554728) Journal

    Yet another data point proving that the EFF is one of the best nonprofit organizations in the US for a geek to bestow a gift upon.

    If you're the kind of donor who's inclined to reward success rather than fund battles, now's a great time...

    Oh, wait... See sig.

    • by andydread (758754)
      I wonder how many Slashdotters have donated to the EFF. I did $65 last year and this year bought $80 worth of keychains and hats to hand out this holiday season. I wish geeks would understand the real value that the EFF has brought to the discourse when it comes to our digital freedoms in America. May all Deities bless the EFF.
      • by Nigel Stepp (446)

        I tend to give to them at several random times throughout the year. Something like EFF *needs* to exist, and it needs to have some might backing it up.

        They stay on top of a wide variety of issues and *get results*. Here everyone: help [eff.org] them out.

  • by Tanman (90298) on Tuesday December 14, 2010 @07:23PM (#34554930)

    Can I submit a formal request that demands my email provider not release any of my emails without being forced by warrant. If I can't stop voluntary compliance, then this is not very helpful anyway. In other words, we need the supreme court to rule that it is illegal for the host to disclose my emails without a warrant or this doesn't help in any meaningful way.

  • by AHuxley (892839) on Tuesday December 14, 2010 @07:32PM (#34555016) Homepage Journal
    Read e-mail vs track/sort the ip/to/from headers?
    Thats the very old trick that is used. A massive passive database of who is connected to who.
    One person gets a real court sneak and peek letter, anyone one connected gets their email lists sorted
    - who they are connecting to and so on. So if they dont read they can collect all connecting details they want.

    A bit like the NYPD collecting IMEI numbers via an offer to remove a cell phone battery to prevent leakage.
    NYPD tracking cell phone owners [nydailynews.com].
    Its the number/ip/logs/connections thats interesting long term, the contents can wait.

    • by pclminion (145572)
      Massive passive? Awesome possum!
      • by AHuxley (892839)
        Re Massive passive? Awesome possum!
        vs the personal touch of a gps tracker wired deep into your car, your voice print on file,
        your OS and keyboard accessed, your calls to family and friends getting near real time translation,
        your internet logs getting looked at by a human.
        The massive part would be long term billing (name), ip and IM/email usage been logged over a few different networks, protocols and databases.
    • Indeed. It's an "old trick" that has been upheld by the Supreme Court. The aggregation of the start and end points of a conversation, but not the content of a conversation, constitutes what is known as a "pen register". Such collection was judged to be legal without a warrant or court oversight in Smith v. Maryland 442 U.S. 735 (1979) [findlaw.com]. Courts have subsequently found that pen register statutes apply similarly to IP addresses, logs of web sites visited, and the "envelope" of an email message — its To: a

  • Where can I find a government that respects the bill of rights ?
  • ....said my brain, and so I looked up the individual involved in the case.

    To say the least, I got a stiffy...
  • FTFOpinion:

    At one point, Enzyte customers seeking a refund were told they needed to obtain a notarized document indicating that they had experienced “no size increase.” The admittedly ingenious idea behind the policy was that nobody “would actually go and have anything notarized that said that they had a small penis.”

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