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."
Does anyone have the right to copy your mail? (Score:4, Informative)
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.
I've said it before, and I'll say it again.. (Score:4, Informative)
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.
Seriously...
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)
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?
Email is like Postcards.... (Score:3, Informative)
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)
Re:Email is like Postcards.... (Score:2, Informative)
Why the court is wron (Score:5, Informative)
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.
ALOT more to this case that is disturbing... (Score:2, Informative)
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)
Re:Other Amendments (Score:3, Informative)
Re:Other Amendments (Score:4, Informative)
Re:Other Amendments (Score:1, Informative)
So, quartering during wartime is ok, as long as it's "in a manner to be prescribed by law".
Case Summary (Score:5, Informative)
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.
Re:Why the court is wron (Score:3, Informative)
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)
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).
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.
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 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.
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...
Composition of the Court (Score:3, Informative)
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)
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)
Re:Other Amendments (Score:3, Informative)
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.
Expectation of Privacy does not work that way! (Score:4, Informative)
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.