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6th Circuit Finds That E-mails Are Protected Under 4th Amendment, Search Warrants Needed For Government E-mail Interception
In light of recent developments, courtesy of the Wikileaks firestorm, around the broad and narrow definition of freedom of speech, which apparently is perfectly free, until it confirms that the narrow-minded individuals at the top are truly as narrow-minded as popular folklore will represent them to be, the question of just what and how far the government is allowed to "probe" into is rapidly becoming once again very relevant. And while most Americans have an atavistic response toward having their snail mail intercepted and opened, or their phones bugged, few realize that today's the primary mode of communication, e-mail, has been subject to just the same amount of government surveillance, ever since the Patriot Act, but particularly in recent days. Which is why a recent decision by the Sixth Circuit Court of Appeals that found that email privacy is protected by the Fourth amendment, may force the administration to do some drastic changes to either its eavesdropping infrastructure, or the constitution. Or, as most often happens, nothing changes and people simply forget, as the status quo continues as it always has.
The Electronic Frontier Foundation has a summary on this increasingly more critical issue:
In a landmark decision issued today in the criminal appeal of U.S. v. Warshak,
the Sixth Circuit Court of Appeals has ruled that the government must
have a search warrant before it can secretly seize and search emails
stored by email service providers. Closely tracking arguments made by
EFF in its amicus brief,
the court found that email users have the same reasonable expectation
of privacy in their stored email as they do in their phone calls and
postal mail.
EFF filed a similar amicus brief with the 6th Circuit in 2006 in a civil suit brought by criminal defendant Warshak against the government for its warrantless seizure of his emails. There, the 6th Circuit agreed with EFF
that email users have a Fourth Amendment-protected expectation of
privacy in the email they store with their email providers, though that
decision was later vacated
on procedural grounds. Warshak's appeal of his criminal conviction has
brought the issue back to the Sixth Circuit, and once again the court
has agreed with EFF and held that email users have a Fourth
Amendment-protected reasonable expectation of privacy in the contents of
their email accounts.
As the Court held today,
Given the fundamental similarities between email and
traditional forms of communication [like postal mail and telephone
calls], it would defy common sense to afford emails lesser Fourth
Amendment protection.... It follows that email requires strong
protection under the Fourth Amendment; otherwise the Fourth Amendment
would prove an ineffective guardian of private communication, an
essential purpose it has long been recognized to serve.... [T]he police
may not storm the post office and intercept a letter, and they are
likewise forbidden from using the phone system to make a clandestine
recording of a telephone call--unless they get a warrant, that is. It
only stands to reason that, if government agents compel an ISP to
surrender the contents of a subscriber's emails, those agents have
thereby conducted a Fourth Amendment search, which necessitates
compliance with the warrant requirement....Today's decision is the only federal appellate decision
currently on the books that squarely rules on this critically important
privacy issue, an issue made all the more important by the fact that
current federal law--in particular, the Stored Communications
Act--allows the government to secretly obtain emails without a warrant
in many situations. We hope that this ruling will spur Congress to
update that law as EFF and its partners in the Digital Due Process
coalition have urged, so that when the government secretly demands
someone's email without probable cause, the email provider can
confidently say: "Come back with a warrant."
Full decision can be found here.
h/t Deepak
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About time that Damned piece of paper won a victory. Let's hope the Supremes don't screw this up!
One word: ECHELON. The laws mean nothing to shadow governments. They have for long and will continue to monitor all phone, email, telex, etc.
Leave it to the mostly hillbilly circuit to come up with a decent decision. Don't worry, it will be overturned.
Yeah... if it's from a employee, the boss may read it.
Any police bust, and emails may be read and are proof.
BUT IF IT'S FROM THE GOVERNMENT! OOOHHH!!! 4 TH AMENDMENT BITCHEZ BECAUSE THEY ARE GOD!!!
THEY GET TO USE THE AMENDMENT LIKE SILLY PUDDY!!
Well I hope this stands.
I do not well understand the ¨guts¨ of email technology and I have read that anyone should consider their emails as unsecure. So even if the ruling stands, there are still several other email issues to be decided in the legal realm.
But, hey, one for our side!
The analysis all comes down to the expectation of privacy. I fully expect my emails to be private unless circumstances dictate otherwise, such as responding to some mass email communication. If I send a private email to a friend, I expect that some government douche bag with a carnivor program has no right to it. I know, I'm painfully naive. <OUCH> my collar of obedience is beginning to tighten...
private my ass.
I had to have it put in my working contract that my laptop may also be used privately and that in no circumstances it may be checked. Also my internet traffic and emails may not be checked.
2 weeks ago, I was about to lynch our IT guy because he looked at some private holiday pictures on my laptop when he was supposed to fix a few things.
None of my other collegues asked this and all thought it was a stupid thing to ask 4 years ago.
I'm a freak about my privacy, only my own family may know what I do. And for what I don't want my wife to know, I have my secret own bank account :)
dude, you gotta rage on this, cuz, well. whatever you've sent is like all available to whoever wants it. Contract? lmao!
I've been wondering where the Ministry of Truth is, here in the internet, e-mail, Facebook, Twitter, ad nauseum environment. Sigint, Comint, etc, well, lotsa effort to interpret.
- Ned
"....and I have read that anyone should consider their emails as unsecure."
That's exactly right. Nothing on the internet is "secure."
Sr. Rolling Bearing:
We highly recommend using PGP on ALL delicate communications. It would also be suggested that your correspondents do likewise...
Become inscrutable...
One can always make arrangements with those you communicate with and use PGP (Pretty Good Privacy) software to encrypt important emails, and keep the Govt's nose out of one's business.
The world super-power intimidated by the individual. What a joke this insecure administration really is.
So what recourse does anyone have when the gov violates this precious right again?
None. There are no rights any more.
Well, I just emailed myself a memo to remind myself that the gov can suck my ass. I know I can count on everybody from Google to DHS to respect my privacy rights . . .
Ooops, did I say that out loud?!
I'm a gonner now. What a cuntry.
except, of course, the right to health insurance... /sarc
I wonder how this could affect email service providers, such as Gmail, as they read them all the time so they know what ads to show you. I have always thought this to be a violation of my right to privacy but discussions about this in the past have fallen on deaf ears at Google.
Oh, him? He's just the office algorithm. The only one he talks to is the data base.
Makes my user experience all warm and fuzzy.
You don't have recourse against the US . Your recourse is against the officers as private people. When a gov't official does something that is violation of a known legal right even if it is a good faith mistake of law, he is outside his office. Officials have qualified immunity. The qualification is that what they did was lawful. A statute made against the Constitution is void and the citizen can regard it with impunity.
Guys talking that shit in prison are known pejoratively as jail house lawyers for a reason.
One Word for ya: Encryption!
I recently filed a Pro Se appeal to the Colorado Supreme Court on 3 seperate constitutional criminal issues. They refused to even consider the appeal. Those issues focused on the 4th, 6th and 14th Amendments.
So at least I know where the courts are: The same place as Congress and the President.
Might as well find another banana republic that has warmer weather. Milestones
Bout time someone showed some common sense.
It's too late. I think we are developing a culture of paranoia, where savvy people won't put anything in writing if there is the slightest question about whether it could ever be used against them under any circumstances.
Just like hunting or fishing, they can cull the "herd" of un-savvy people.
Whether this is a good development is a separate question, to which I think the answer is no.
In less than 100 years, two things have changed radically, and I think they are closely related. One is we have had the growth of government from a relatively unobtrusive and small thing to an all-encompassing beast that seeks to control every aspect of our lives such as how much we can flush and what kind of lights we can put in the toilet room. And trust and goodwill have been in continual decline.
I expect those who are part of this group to storm the White House any moment. After all, that is their purpose right?
http://oathkeepers.org/oath/
A bit much to expect. We all know that the majority, however slim it might be, of people who join the security apparatus are fascists at heart. The hope with Oath Keepers is that those who want to be something more will be moved to show it when their brothers are ordered to murder, rape and pillage their countrymen.
The courts don't give a damn about your rights, they just want to keep their officious duties intact. Hey judge, eat my sheorts!
When the government illegally tries to find out who is being naughty or nice, its for the common weal. When people illegally try to find out the same about the government its treason.
Ship has already sailed. Doesn't matter now.
I took a shit today, and I named it the US government. Does that make me a terrorist?
It depends on what you had to eat prior to the solid waste excretement-dirty bomb hazardous waste:)
So, I read the headline and my first thought is, "yeah, right, what's the catch?". Then as I read a little further and see...
Ding, ding, ding! Winnah!
Here's the deal, fedgov has servers already within ISPs (Carnivore) that can capture emails. Well, they state they only capture email headers, but as anyone with some email knowledge knows, it's all together, so it isn't like you can capture a header without having access to the body of the message.
So while fedgov may use ISP cooperation in order to gain emails, it isn't a technical requirement that they do so. All this landmark ruling does is to change the tactics of how to get the emails. First, they use Carnivore to find the emails they want, then use that as probable cause to obtain the warrant. Problem solved, all while the herd believes that the 4th Amendment protects their emails.
They consider the fruit of the poisonous tree a special delicacy.
Twisted fucks rule.
Government of, by and for the sociopaths. Just like the TBTF. And the parasitic life forms that make their living from same.
Don't get your hopes up.
Since when has the government acted as if it is supposed to respect such banalities as the rule of law? The federal government routinely routs domestic mail out of the country so that it can be opened when it reenters, the same as with telecommunications. To this decision I am sure the administrations response will be identical to Stalin's regarding the Pope. "Where are his battalions?" The 6th circuit has no ability to enforce its decision with force rendering it a farce to the other two branches of government. Just ask Cas Sunstein, Chief Justice Roberts, Joe Lieberman, Diane Feinstein & Orrin Hatch.
why go to all that effort when you can just grant AT&T immunity?
This is just noise. The lawmakers will learn the hard way. First, they didn't create the Internet, nor understand the complexities. $$$ in the eyes of a public servant is the MO. Wait until illegal politician wrongdoings end up on the WWW.
Fear is alive and well in Washington DC. We are watching a game of chess. Government doesn't have the back door key. In the LSM eyes, it will be told to you... the the situation is contained.
The corruption is so far up their ass, its painful for them to shit everyday. Call it a mini episode of minority report, only the crime has been committed in real time and the computer can show proof.
Enjoying my popcorn from the sidelines.
The government just totally ignores the consitution and the law.
Isn't that obvious? Does anyone imagine anything will change?