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United States Privacy The Courts Your Rights Online

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

Artefacto writes "Last Thursday, the Eleventh Circuit handed down a Fourth Amendment case, Rehberg v. Paulk, that takes a very narrow view of how the Fourth Amendment applies to e-mail. The Eleventh Circuit held that constitutional protection in stored copies of e-mail held by third parties disappears as soon as any copy of the communication is delivered. Under this new decision, if the government wants get your e-mails, the Fourth Amendment lets the government go to your ISP, wait the seconds it normally takes for the e-mail to be delivered, and then run off copies of your messages."
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11th Circuit Eliminates 4th Amend. In E-mail

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

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

    Sec. 1702. Obstruction of correspondence

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

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

    Sadly, I doubt this will ever happen.

  • by hacker ( 14635 ) <hacker@gnu-designs.com> on Tuesday March 16, 2010 @09:46AM (#31494568)

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

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

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


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

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

  • Re:Hold on... (Score:3, Informative)

    by CheshireCatCO ( 185193 ) on Tuesday March 16, 2010 @09:54AM (#31494694) Homepage

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

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

  • by EXTomar ( 78739 ) on Tuesday March 16, 2010 @09:55AM (#31494726)

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

  • Re:Encryption (Score:4, Informative)

    by betterunixthanunix ( 980855 ) on Tuesday March 16, 2010 @10:01AM (#31494844)
    It should not be limited to sensitive email for the following reasons:
    • This gives the government a clue about what emails you really want to hide -- and then they will just focus on those, possibly harassing the recipients.
    • Some stupid politician will see this behavior and declare that email encryption is suspicious and pass some UK/China-esque laws about it.
    • You never really know what statements of yours can be used against you. I read about a case where someone saying, "My life is over..." as they were arrested was accepted as evidence of their guilt. You may think a particular message is innocent, but there is no way to tell.
    • Even your truly innocent messages can be turned into data points for the government (or a third party) to construct a profile about you, which can then be used as part of a broader attack.
  • by tizzo ( 1616443 ) on Tuesday March 16, 2010 @10:07AM (#31494952)
    It's worse than that actually. From when a postcard leaves your mailbox until it arrives at the mailbox of the recipient, only the postal employees who handle it have legal access. If the recipient throws it away without destroying it, then it becomes publicly accessible. But mail in transit, even postcards, are protected by law from being accessed by any but specific people. Email on the other hand is placed on a wide open, publicly accessible, shared channel. Most people don't have the interest or wherewithal to sniff every packet that crosses the internet. But all people have the legal right to do so. IE if you are able to see it, then you are allowed to see it. Email then is like a postcard would be if you relied for delivery on pinning it to a public bulletin board somewhere that the recipient knew to go pick it up.
  • by ral ( 93840 ) on Tuesday March 16, 2010 @10:08AM (#31494966)
    In TFA Volokh, a distinguished law professor, explains why he thinks the court got it wrong:

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

  • by Felgerkarb ( 695336 ) on Tuesday March 16, 2010 @10:10AM (#31495002)
    For reference, here is the text of the appellate court judgment. [leagle.com]

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

    The long and the short of it is that, because they are prosecutors, they are given absolute immunity from prosecution for their grand jury testimony, even if it is knowingly false! They are given immunity from the conspiracy to provide false testimony, since the only evidence of false testimony would be the grand jury testimony itself, which is protected!

    The 4th amendment issues seem also weird to me. They say that you cannot expect a phone number to be private, since by dialing it you have given the number to the phone company, which is a third party. Really?! What is the point of a phone number, what value does it have, except with regard to the third party, in this case the phone company? I can't shout someones phone number in the street expecting that they will respond, and in any case, that also makes it public and not protected by the 4th. Again, IANAL but under what conditions would an email ever be considered private? What about letters and packages that aren't sent through the postal system? Are they private? I just don't understand this.

    Again, I have no perspective and experience for this, but as a layperson, I really hope that other courts find this reasoning flawed. It seem very much so just by common sense to me, though I understand common sense doesn't necessarily mean anything here.

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

    by MattSausage ( 940218 ) on Tuesday March 16, 2010 @10:11AM (#31495020)
    You are thinking of the Revolutionary war. The Civil war was the war between the states. Some four-score and seven years later.
  • Re:Other Amendments (Score:3, Informative)

    by ircmaxell ( 1117387 ) on Tuesday March 16, 2010 @10:14AM (#31495074) Homepage
    No, it wasn't. The way the 4th amendment is worded, No soldiers can be quartered in any house without consent of the owner during peace times. During war, they may so long as it is done in a manner which was prescribed by law (So as long as the government passed a law with guidelines on how to do it, it is legal for soldiers to bed in a home without the consent of the owner)... At least that's how I read it...

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

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

    by ElectricTurtle ( 1171201 ) on Tuesday March 16, 2010 @10:19AM (#31495146)
    The US Constitution was ratified in 1788 (though the Bill of Rights was not made effective until 1791, and they were not made to apply to the states in superseding state law until the 'incorporation' under the 20th century 14th Amendment interpretation explicit in cases like Gitlow v. New York), the US Civil War began in 1861. Please, please tell me that you are not a US voter.
  • Re:Other Amendments (Score:1, Informative)

    by Anonymous Coward on Tuesday March 16, 2010 @10:21AM (#31495206)

    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.

    So, quartering during wartime is ok, as long as it's "in a manner to be prescribed by law".

  • Case Summary (Score:5, Informative)

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

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

    Here's a brief summary

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

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

  • by geekoid ( 135745 ) <dadinportland AT yahoo DOT com> on Tuesday March 16, 2010 @10:59AM (#31495812) Homepage Journal

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

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

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

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

    "Conversely, the fact that the recipient of the mail does not have Fourth Amendment rights in the copy does not mean that the government can break into the recipient's house to read the original."
    Yes it does, if the "government" has a subpoena. For clarifications, the 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."

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

    by Red Flayer ( 890720 ) on Tuesday March 16, 2010 @11:47AM (#31496614) Journal

    At the time, trade laws were biased heavily in favor of the north and the southern states had to pay heavy tariffs on everything we got from them

    Tariffs between states did not exist at that time. Perhaps you are confusing the issue of tariffs between the states with export tariffs on agricultural goods? The tariff issue boils down to protectionist tariffs on finished goods (helping the North's industrial base), and export tariffs on agricultural goods (the North wanted the South to sell goods cheaply to them, not to sell goods overseas).

    The north is in no position to take the moral high ground here. Lincoln chose to ignore the constitution he swore to uphold and should have been impeached.

    Every president of the US did likewise in time of war. And each time, it wasn't quite as bad. Judge Learned Hand wrote extensively about this; Lincoln was no different (and perhaps a little better wrt rights, even) than prior wartime presidents. Rights are trampled in time of war, then peacetime review finds problems with those actions... so in the next war, rights are trampled a little less. This has held true until, arguably, the current war in Iraq.

    Sherman was a war criminal who burned everything in sight just for the sake of causing damage.

    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.

    The north invaded our lands, killed many of our people, and destroyed most of our infrastructure.

    The south would have done the same were they able to. They did, after all, initiate the hostilities. The south's campaign into Pennsylvania was a good example of the south practicing a lot of the same tactics the north would later use in the south... the only reason there wasn't a lot of infrastructure damage is because the south wanted to use the north's rail systems at the front. Had the south been able to get past the front, they would have destroyed northern infrastructure.

    Why do people always look down on the south?
    Who are they to judge us?

    I'm a damned yankee, and I look down on much of the south. There's ignorance and stupidity everywhere (present company excepted, of course), but the south seems to have gotten a double helping.

    FWIW, I look down on much of the north as well...

  • by Infonaut ( 96956 ) <infonaut@gmail.com> on Tuesday March 16, 2010 @12:14PM (#31497100) Homepage Journal

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

    The other thing to remember is that the onus of responsibility is on the lawyers who are presenting their case to the court. If they didn't do a good enough job of explaining the intricacies of email to the judges, they failed in their role as advocates.

    For those who may have wondered, the Eleventh Circuit covers Alabama, Florida, and Georgia. Finally, for something other than a knee-jerk reaction to the ruling, Professor Volokh's article (the one linked to in the post) is worth reading.

  • Re:Other Amendments (Score:1, Informative)

    by Anonymous Coward on Tuesday March 16, 2010 @12:29PM (#31497364)

    You are thinking of the Revolutionary war. The Civil war was the war between the states. Some four-score and seven years later.

    No, the practice was still in effect during the War of Northern Aggression, but it took a different form. You see most of the fighting was in the south meaning that most of the troops on both sides were also in the south.

    When southern troops marched through your land they asked to buy resources with worthless paper money and most were obliged to do so. When the northern troops came on your land they took your best crops and livestock, burned all food except for livestock feed, and they stole/destroyed/set free all of your property. Then the troops lived in tents on your former land.

    So quartering of troops was very common for those who owned property. Seems to me that the quartering of British soldiers is pretty tame by comparison.

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

    by zach_the_lizard ( 1317619 ) on Tuesday March 16, 2010 @01:27PM (#31498266)
    Of course, to end habeas corpus, you have to have Congress do it. Lincoln declared it on his own authority, a power not proscribed to him. The war also saw the imposition of an income tax, which was then unconstitutional, and the expulsion of many secessionists or advocates of peace in the North to Canada. Similar things went down in the Confederacy, and both sides ran terrible POW camps.
  • Re:Other Amendments (Score:3, Informative)

    by MightyMartian ( 840721 ) on Tuesday March 16, 2010 @02:00PM (#31498788) Journal

    They won, the Jeffersonian-Madisonian model lost. The theory that a state had some right to secede was thrown in the dumpster of failed ideas. And whatever laws Lincoln broke and whatever mistakes he made (and he made plenty), I'd take him any day over Jefferson Davis.

    Whatever the Civil War was about, the Confederacy ultimately lost because of slavery. The British government would dearly have loved to have offered its support to Confederacy, but it was political suicide by the mid-1800s for any British government to offer that kind of support to a state that had the degree of legalized slavery. Ironically, if the Confederacy would have passed its own 13th Amendment, the Brits might very well have given them a hand.

    However you turn it, slavery was the South's downfall.

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

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

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

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

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

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

If it's not in the computer, it doesn't exist.