US Wants Courts to OK Warrantless Email Snooping 476
Erris writes "The Register is reporting that the US government is seeking unprecedented access to private communications between citizens. 'On October 8, 2007, the United States Court of Appeals for the Sixth Circuit in Cincinnati granted the government's request for a full-panel hearing in United States v. Warshak case centering on the right of privacy for stored electronic communications. ... the position that the United States government is taking if accepted, may mean that the government can read anybody's email at any time without a warrant. The most distressing argument the government makes in the Warshak case is that the government need not follow the Fourth Amendment in reading emails sent by or through most commercial ISPs. The terms of service (TOS) of many ISPs permit those ISPs to monitor user activities to prevent fraud, enforce the TOS, or protect the ISP or others, or to comply with legal process. If you use an ISP and the ISP may monitor what you do, then you have waived any and all constitutional privacy rights in any communications or other use of the ISP.'"
"Think about it" (Score:3, Funny)
Think about it.
Re:"Think about it" (Score:5, Insightful)
"Think about it" is usually the final sentence after a list of "proofs" that present the point of the one arguing. "Obviously" is used whenever he does not have any facts to support his theory. No facts needed, it's "obvious" and if you don't agree, you can't even see the obvious, dumbass!
Re:"Think about it" (Score:5, Funny)
Re:"Think about it" (Score:5, Informative)
Oh, and for the "it's the Register, pooh pooh" crowd, the original FA was frist psoted on Security Focus [securityfocus.com].
Re:"Think about it" (Score:4, Interesting)
Your comment about "followers" of Security Focus is way off base. Outside of the world of artificially constructed arguments on TV, people aren't "followers" of news outlets. We are readers or subscribers or viewers, but we're not "followers." You might want to re-evaluate how you select and scrutinize your news.
PS: I'll note that I've been saying for years that it's imperative for stand-alone personal MTAs to remain viable, and this is why. Routine, passive end-to-end encryption is the way that we make this impractical.
Re: (Score:3, Insightful)
To be clear, I'm dead set against the government reading my email, encrypted or not. All I was trying to say is that the phrase "reasonable expectation of privacy," on which the legal test is currently based, is a shitty test, as what a reasonable person would "expect" the government to do is to violate you in any manner they can get away with.
In other words, this is an unconstitu
Re:"Think about it" (Score:4, Insightful)
I have a strong suspicion that the next President, whoever she may be, will be briefed on all this stuff and will determine either that 1) the real threat is actually so great that the surveillance programs should continue, or 2) the conduct of the surveillance programs is actually more in keeping with accepted American principles than is commonly believed among the public. I predict that for at least the duration of the next presidential term, we will not hear of any surveillance program being shut down by order of the President.
Re: (Score:3, Insightful)
I assume the implication here is that the threat is much greater than we, the people, know, and that the surveillance has been more successful at stopping the threat than we know. Well that would be rather odd given that Bush's PR team takes every possible opportunity to play up the threats and their successes, rarely even waiting long enough to figure out whether their PR fluff will hold up once the facts are brought in
Re:"Think about it" (Score:5, Insightful)
Considerably more germane to how the US is supposed to work than a religious quote, the constitution has this to say:
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.
Notice how a warrant has to be issued describing the "place" to be searched. The beginning of the amendment specifies "houses", but the rest is more general - the implication is that your shed, your place of business, someone else's coffee kiosk or bench or "mailbox of letters" or "container of packets", all are protected against unreasonable search. What is unreasonable in this context? It's right there, just read it: "right of the people to be secure" - that's unreasonable to violate. If you're not secure, you've been violated unless (a) they have probable cause and (b) they have a warrant and that warrant is supported by oath or affirmation.
With regard to communication modalities, at the time, what they had for remote communications was basically paper. Please note the explicit constitutional reference to the security of papers. You could write something down and send it elsewhere. This is where the idea that your mail should be secure comes from. Well, today, we have other mechanisms. Do you think that in ANY rational world, if the authors of the first amendment knew that you could send messages over wires or through the air, that they would have said, "Oh, well, in that case, you have no right to be secure? You can't base such an argument on how "easy" it is to read such communications, because there's nothing as easy to read as the mail is.
Those authors weren't trying to enumerate the "only" places you were to be secure, they were trying to say you should be secure PERIOD unless... oath, probable cause, warrant. I read the "persons, houses, papers and effects" as a general set of guidelines that is broadly inclusive; that reading is particularly supported by "effects", because that word is about as non-explicit as you can get in the language of the day.
Privacy is the social boundary that the citizens agree shall not be crossed. Closed doors shall be knocked upon; locked or not. Skirts shall not be looked up, short or long. Envelopes shall not be opened, unless addressed to you. Diaries shall not be read except by explicit permission from the author. These things are all important cornerstones of how society works. Not a one of them carries the addendum "unless it is easy" because it is obvious to each and every one of us that the existence of such boundaries is what makes life as an individual reasonable.
To the extent that the government argues that "because it can", it should be allowed to, we are faced with an intrusion that is both antisocial and constitutionally wrongheaded, as well as, I would argue, constitutionally anticipated and explicitly forbidden.
Re: (Score:3, Interesting)
As for privacy
Re:"Think about it" (Score:5, Insightful)
Sometimes, "think about it" is an invitation to test your brain and see if it's broken before they write you off as an idiot who really is.
Obviously.
Re: (Score:2)
Re: (Score:2)
Of course, if you were to look for someone with experience being in a position of command, where who doesn't have the leisure to refuse to guess, a professional writer of fiction would probably be the absolute worst choice you could make. A housewife or a traffic cop would be better prepared.
It's very eloquent though.
Re:"Think about it" (Score:4, Insightful)
Re: (Score:3, Interesting)
Outrageous conclusion? (Score:5, Insightful)
1) Staged faked news conferences and failed to tell the real reporters
2) Cant decide whether waterboarding is torture
These people will do anything they are allowed to until they are told no and
sometimes even after they are told no.
There is a way around this, if a court says the ISP agreement is what creates
or does not create a reasonable expectation of privacy then the day after
the court rules as such then I will tell my ISP either they change their ISP
agreement to say that my emails are private and will only be disclosed upon a valid
court order or I will find a new ISP that will do so.
Re: (Score:3, Informative)
alternative? (Score:5, Insightful)
Only as long as it remains legal to encrypt your mail.
Re: (Score:2, Interesting)
There's a reason why every year we are subject to more laws than the year before. There's a reason why every year government spends more than the year before. There's a reason why every year power is concentrated further into the hands of the few. There's a reason why every year you are les
Re:Postcard/email analogy... (Score:4, Interesting)
The entire opinion can be found at http://w2.eff.org/legal/cases/warshak_v_usa/6th_circuit_decision_upholding_injunction.pdf [eff.org]
"Land of the Free" (Score:4, Insightful)
Re:"Land of the Free" (Score:5, Interesting)
Re: (Score:2)
Re: (Score:3, Funny)
Why didn't anyone tell him?
Re:"Land of the Free" (Score:5, Insightful)
Monitor Democratic e-mails? (Score:4, Insightful)
Here's the ironic side of this - the Democrats are pretty much in a lock to have the next White House, barring another extreme disaster that sends people running back to Big Brother again. All of these broad, sweeping changes for the power of the White House will only be partially in effect for Bush's term... and fully in effect for Obama or Clinton's term. The Democrats would like to thank the Republicans for giving them such broad power. (Not that I support either of them having it, mind you.)
Re: (Score:3, Insightful)
Do you really believe that? I think it is MUCH more up in the air at this moment. I mean, congress is at an all time low. The Dems got in, and pretty much have failed to do ANYTHING they said they were gonna do if voted in over the Reps. War? Still going on. Privacy matters? Nah...they gave in on the recent chance to p
No Dissent. Evil Past and Worse Future. (Score:5, Insightful)
They can spy on Democrats, their own people and anyone's and that's why this is more important than firefly diatribes. Without privacy in communications anyone who would bother to stand up for your rights can be identified and punished. Targeting can start in school, before the victim understands the issues or can defend themselves. Anyone who would encourage or aid the dissenter can also be punished. What the current administration is asking for is a tool more complete than Orwell was able to imagine in a paper world.
Imagine, for example, that Martin Luther King Jr. [wikipedia.org] had been identified when he was a Morehouse College, instead of 1961. Do you think he would have been able to withstand such early and sustained attention as he suffered later [wikipedia.org]? As late as the 1980's some asshole decided to prove that King did not deserve his PhD [wikipedia.org]. If a smear campaign had been launched while King was at Morehouse, he would never have made it in to Boston or Crozer. Would it have been possible to recognize a pattern or would society have simply been robbed of a charismatic champion?
It's cases like King's that created the outrage that outlawed domestic spying. We should remember those foul deeds and start the pendulum swinging back towards privacy. What we find today may be worse than what we know about King because technology has made things so much easier to identify, smear and harass.
Re: (Score:3, Insightful)
Re:"Land of the Free" (Score:4, Insightful)
Also, you can't reasonably expect any privacy in email unless you encrypt its contents.
Re: (Score:2, Interesting)
Re:"Land of the Free" (Score:5, Insightful)
Also, you can't reasonably expect any privacy in email unless you encrypt its contents.
On privacy, while it is possible to read an unencrypted e-mail, that is not the same as an invitation to do so. It is possible to read my documents in my locked file cabinet, it just requires access and a pull hammer. Does that mean that those can be reviewed by the government? My phone line can be tapped by pretty much anyone, but does that mean it is okay for everyone to do so?
I don't disagree, I think that encryption is a fine thing, and should be used more often. However, I do not believe that my right to privacy exists regardless of the technological possibilities to interfere with it.
Re: (Score:3, Informative)
Well yes it IS a technical term because we're talking about Constitutional Law here. The fact that it is expressed in English, where words can have multiple meanings, should not be taken to mean that any definition you like is the one that applies. The meaning of the phrase is put down in case law, not the Oxford English Dictionary.
And no, it doesn't just mean "desired", it means that it was the intent to be private,
Re:"Land of the Free" (Score:5, Insightful)
Yep... 20 mln citizens have already gone to labor camps and hundreds of thousands executed [wikipedia.org], while deliberately-induced starvation [wikipedia.org] is killing millions more on conquered lands. No private property can legally exist — all enterprises belong to the State (of Workers and Peasants). It is illegal for peasants to leave their village without the headmaster's Ok (he is the one issuing them passports), and for all others to leave the country. Those suspected of subversion are tried by secret courts — either for the actual subversion, or (in the later stages of the Cold War) for "drug dealing", "gun possession", or homosexuality [wikipedia.org]. It is illegal to own "xerox" machines and other "publishing" equipment.
Hot water is a luxury available in cities, and even the running cold water (where available) could be out for days and weeks at a time. Wait for for an apartment is counted in years (and decades), as is the wait for telephone connection. Cars are small, unreliable, polluting, expensive, but you can't get them anyway. Same is true of electronics and most other manufactured things.
Yes. America is not that different at all...
Patently false — the government is seeking access to one particular method of communication — unencrypted e-mails. Whether they get it or not, you are a fool, if you expected privacy of that to begin with...
Except the Register, right? Phew...
Postcard/envelope analogy (Score:4, Insightful)
Re: (Score:2)
Re:Postcard/envelope analogy (Score:5, Insightful)
In other words, the snagging point is the definition of "expectation of privacy" -- but the situation is really quite simple: The average user simply expects privacy, but the government is trying to force them to abandon that expectation, so they can then go and install ubiquitous e-mail surveillance without violating the letter of the US Constitution. The government is trying to win by arguing semantics, so what I find hardest to believe is that anyone is taking all this blatant skullduggery seriously. I've seen better weaseling from schoolkids trying to avoid homework assignments.
E-mail is electronic, so the message is NOT viewable in transit without making an effort to intercept and decode it, even if the encoding is just ASCII. 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.
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", the average user is not unreasonable in expecting privacy.
Re:Postcard/envelope analogy (Score:4, Insightful)
Re:Postcard/envelope analogy (Score:4, Insightful)
Where's Bad Analogy Guy when you need him?
Re: (Score:3, Funny)
Re: (Score:3, Insightful)
Re: (Score:2)
Now though, following with the the governments policy on encryption via the DMCA (as I understand it, once a
Postcard/envelope analogy difference (Score:3, Insightful)
You Don't Understand At All. (Score:5, Insightful)
The general populous need to be more aware that plain email is more like a postcard than a message in a sealed envelope though.
"Reasonable expectation of privacy" arguments mask the true cost of tyranny and the public should object to all forms of domestic spying. The right emails do not just fall from the sky onto FBI agent desks so that criminals can be prosecuted. It costs money to read and sort email. It's outrageous to waste tax money on things like that because criminals know how to hide and the machinery will be abused for political purposes [slashdot.org]. One way to protect the public from that kind of waste and abuse is to demand government obtain search warrents for email snooping. This is what the fourth amendment is all about.
Re:Postcard/envelope analogy (Score:5, Insightful)
Re:Postcard/envelope analogy (Score:4, Insightful)
Re: (Score:2, Funny)
Really? I suggest you write "I'm gonna fly a plane into the Sears Tower" on a postcard and see how much hilarity ensues.
It would probably go unnoticed.
Re: (Score:2, Insightful)
Let's see you test this. Take your fingers and make nice clear prints on a postcard, then write a death threat to the president on it and send it from your neighborhood post office to the White House. Repeat this action once every month.
Please let us know what happens (find a Slashdot-enabled lawyer before you start the experiment, please).
Re: (Score:3, Informative)
But in that case, sending the postcard itself constitutes a crime, in that you're making a threat. I presume he meant the information obtained by the authorities reading a postcard whilst it's sent through the post. A better experiment would be to send it to someone else, de
Re: (Score:2)
Re: (Score:3, Interesting)
While this is an affront... (Score:2)
Re: (Score:2)
So, how is it there in the land of the free? Good still?
Apple logo and Turing. (Score:3, Interesting)
Oddly enough until recently it was standard practice for western governments to "outlaw encryption". Before public key encryption came along some of the 'founding farthers' of computer science had worked out how to crack most types of encryption with relative ease and on the side they built computers with meccano sets that calculated trajectory tables.
As a direct result of the German and Japan
Doesn't matter anyway... (Score:2, Insightful)
Re:Doesn't matter anyway... (Score:4, Insightful)
Bush's "farewell" press conference... (Score:3, Funny)
Re: (Score:3, Interesting)
No, he can't. Nor can he pardon anyone else "in cases of impeachment." From Aricle II, Section 2 :
Note that it doesn't say anywhere that impeachment cannot be done after the end of an administration.
Nor, in practice, can he pardon war crimes, as they are globally enforceable. It's the war crimes charges that will eventually
In other words... (Score:2)
Using any kind of encryption is thus quite normal behaviour and can never be seen as any kind of sign that I could possibly be discussing the whereabouts of Ozzy.
Re: (Score:2)
Pidgin has encryption plugins which you can use fairly transparently on a one to one basis. Talking to friends with encryption on is effortless.
So what about email how easy is it to default to encrypted and not make it awkward for the recipients to read the content?
Any recommendations?
incidentally it might have a side benefit of making encrypted mail easy to white list. would spammers have your public key
Right.. (Score:5, Insightful)
Re: (Score:2)
Re:Right.. (Score:4, Funny)
Re: (Score:3, Interesting)
Some do. The stupid ones that keep getting caught do.
The rest (including the successful ones) either don't use email at all, or they use all the best privacy-protecting tools available.
What privacy? (Score:5, Interesting)
The far more impacting (and interesting) legal question is how the courts are going to view the 4th amendment (and others) in light of the way communications are stored for eternity on the internet. A traditional approach seems unwise, since the way ISPs word their terms of service make it so your data practically falls under the "open fields" doctrine for purposes of search and seizure. On the other end of the spectrum, I don't want police investigations entirely shut down just because we want heightened protections for data that we keep in essentially insecure methods.
If you are that worried about privacy, use PGP or GPG.
Re: (Score:2)
Those who do have criminal activities in mind will, or do already. Do you really think those Al Quaida guys don't know how to use PGP? Do you really think they send any kind of crap unencrypted anymore? If at all, that is?
Imagine you know what you're doing is against the law. Do you do it where you can be seen and snooped, especially after hearing so much about it being used? How hard do you think it is for them to use halfway decent encryption that thwarts such sn
Re: (Score:2, Insightful)
Second, I was really making a comment on the interpreting the 4th amendment in the digital age. One of the ways that privacy, though not necessarily 4th amendment protected privacy, is "violated" is by snooping. The question is, where does the 4th amendment kick in?
Re:What privacy? (Score:5, Insightful)
BZZZT. Once again this fallacy rears its head.
The U.S. Constitution is NOT a positive enumeration of citizens' rights. You have a right to do everything except what is specifically forbidden (by laws that we consent to live under). In addition, the Constitution isn't even about you, Mr. Citizen. The Constitution is about what We the People will permit government to do and not do. In other words, we (the people) already have all the rights in the universe*. A few of those we will consent to give for the purpose of living more-or-less harmoniously, and a few of those we will permit to the government. All else we reserve for ourselves and for the individual States in which we consent to live.
* So yes, I do have a Constitutional right to broadband Internet access.
Re: (Score:3, Insightful)
Re: (Score:3, Insightful)
Once an ISP begins providing the government informat
Re: (Score:3, Interesting)
Maybe in Deadwood (which I never watched), ISPs are state actors, but not in the U.S.
I do however see the point you are trying to make. Unfortunately, I don't think the line is so easily draw with ISPs as to when they may be doing "state action" and when they are private companies asserting their position of strength over the consumer. At least, the world has come a long way since Marsh v. Alabama. [wikipedia.org]
PGP might not be dead (Score:3, Insightful)
Two words (Score:3, Informative)
"By the people ... for the people..." (Score:3, Insightful)
Is it me or is that difference not quite clear here? That an ISP snoops on its users is not a good thing, but considering that its customers are just the necessary evil to get the money for its owners, they're not their main concern. The people, on the other hand, should be the main concern of a government.
It's the governments only excuse to exist at all!
Unprecedented is seriously inaccurate (Score:3, Informative)
And we're not even going to "really" oppressive countries like north korea or pakistan.
If you speak dutch, read http://www.onderwereldblog.nl/?page_id=64 [onderwereldblog.nl] for example.
Re: (Score:2)
Of course, I don't think the law is being followed to the letter...
oblig xkcd (Score:5, Funny)
No worries for me (Score:3, Funny)
Let them read... my headers. (Score:5, Informative)
No problem... let them snoop. Now I'll just be twiddling the "Encrypt and sign all outgoing email" box on my MUA, and finally start using GPG [gnupg.org] full-time for all of my incoming and outgoing email, instead of with just my friends and close colleagues.
There are plugins for Evolution [lwn.net], pine [dma.org], mutt [codesorcery.net], Thunderbird [mozdev.org] and just about every other Mail User Agent you can find out there.
Another great benefit, is that I can automatically block/quarantine/delete any and all email that does not contain a gpg-signed component (i.e. 99.999% of all email out there, mostly spam). dspam [nuclearelephant.com] does an amazing job, but being able to just reject it at the MTA level would be great.
And for those that wish to converse with me, please make sure to use my GPG key [veridis.com] to do so (also available here [pilot-link.org] with detailed instructions).
Re: (Score:2)
The problem with encrypted email is there are at least two competing major standards, and 99% of users don't have mail packages that understand either.. so you can't send it unless by prior agreement with your close friends. In practice this ends up as almost never.
Re: (Score:3, Interesting)
I could care less about my public mailing list messages, it's the other email that matters.
Is DHS going to really put me on a watch list because of my contributions to Project Gutenberg, Plucker, the core Mediawiki code or dozens of my other contributions? Not likely.
Are they going to put me on a watch list because of my political affiliations? My emails pointing out the egregious flaws in our administration? The methods people can use to personally protect themselves from an oppressive government? You
Re: (Score:3, Informative)
Not so fast (Score:3, Insightful)
In the meantime I'll just be happy that while my ISP is in the US I don't use their email service. Good luck convincing the service I pay to use out of Norway to give up my email.
Foreign emails too? (Score:2, Interesting)
Re:Foreign emails too? (Score:5, Insightful)
What? (Score:5, Insightful)
They could and get a positive answer. (Score:4, Insightful)
If they did ask, I bet that most of the US population would just go along with it. Because, Civil Liberties is for "criminals to hide behind", "pinko hippies", "gays", "folks who don't want God anywhere", and any other issue that the ACLU and their sister organizations have taken up.
Why, law abiding citizens do not need Civil Rights!
This country and her Constitution is in trouble my friend.
Its nuttin' but spam anyway... (Score:3, Insightful)
The perfect time to discover enigmail (Score:3, Informative)
Ironically... (Score:3, Funny)
This is how liberty dies... (Score:2)
Blatantly unconstitutional (Score:3, Insightful)
Re: (Score:3, Insightful)
Life, Liberty and the Pursuit of Happiness (Score:3, Informative)
Where's the news on this? (Score:5, Insightful)
It's okay... (Score:3, Funny)
Can someone please explain.... (Score:4, Informative)
How is it that the US government can choose to violate the constitution? Isn't the whole point of the constitution that they are obliged to conform to it?
Re: (Score:3, Informative)
First off, IANAL, so this won't be entirely correct but here's the basic idea. The 4th amendment to the constitution say this:
How that has been interpreted is firstly that y
Re: (Score:3, Insightful)
So you're fine with the idea of being randomly stopped on the street and searched by the police, right? Empty your pockets, son, and pop the trunk. Why? Well if you have nothing to hide, you should have nothing to worry about...
Re: (Score:3, Insightful)
On the topic at hand (e-mail), while I am aware that there are multiple points in email transmission that can provide an opportunity for someone to see the contents of my mail, I do not, have not, and indeed quite possibly can not, waive my right to be protected from government surveillance witho