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Should police need a warrant to read emails?

Old 04-16-10, 12:46 PM
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Should police need a warrant to read emails?

http://news.cnet.com/8301-13578_3-20002423-38.html

Google and an alliance of privacy groups have come to Yahoo's aid by helping the Web portal fend off a broad request from the U.S. Department of Justice for e-mail messages, CNET has learned.

In a brief filed Tuesday afternoon, the coalition says a search warrant signed by a judge is necessary before the FBI or other police agencies can read the contents of Yahoo Mail messages--a position that puts those companies directly at odds with the Obama administration.

Yahoo has been quietly fighting prosecutors' requests in front of a federal judge in Colorado, with many documents filed under seal. Tuesday's brief from Google and the other groups aims to buttress Yahoo's position by saying users who store their e-mail in the cloud enjoy a reasonable expectation of privacy that is protected by the U.S. Constitution.

"Society expects and relies on the privacy of e-mail messages just as it relies on the privacy of the telephone system," the friend-of-the-court brief says. "Indeed, the largest e-mail services are popular precisely because they offer users huge amounts of computer disk space in the Internet 'cloud' within which users can warehouse their e-mails for perpetual storage."

The coalition also includes the Electronic Frontier Foundation, the Center for Democracy and Technology, the Progress and Freedom Foundation, the Computer and Communications Industry Association, and TRUSTe.

For its part, the Justice Department has taken a legalistic approach: a 17-page brief it filed last month acknowledges that federal law requires search warrants for messages in "electronic storage" that are less than 181 days old. But, Assistant U.S. Attorney Pegeen Rhyne writes in a government brief, the Yahoo Mail messages don't meet that definition.

"Previously opened e-mail is not in 'electronic storage,'" Rhyne wrote in a motion filed last month. "This court should therefore require Yahoo to comply with the order and produce the specified communications in the targeted accounts." (The Justice Department's position is that what's known as a 2703(d) order--not as privacy-protective as the rules for search warrants--should let police read e-mail.)

On December 3, 2009, U.S. Magistrate Judge Craig Shaffer ordered Yahoo to hand to prosecutors certain records including the contents of e-mail messages. Yahoo divulged some of the data but refused to turn over e-mail that had been previously viewed, accessed, or downloaded and was less than 181 days old.

A Yahoo representative declined to comment.

"This case is about protecting the privacy rights of all Internet users," a Google representative said in a statement provided to CNET on Tuesday. "E-mail stored in the cloud should have the same level of protection as the same information stored by a person at home."

That is, in fact, the broader goal of the groups filing Tuesday's brief. They're also behind the new Digital Due Process Coalition, which wants police to be able to obtain private communications (and the location of Americans' cell phones) only when armed with a search warrant.

Under a 1986 law written in the pre-Internet era, Internet users enjoy more privacy rights if they store data locally, a legal hiccup that these companies fear could slow the shift to cloud-based services unless it's changed.

The judge should "reject the government's attempted end-run around the Fourth Amendment and require it to obtain a search warrant based on probable cause before searching and seizing e-mails without prior notice to the account holder," the coalition brief filed Tuesday says. The Bill of Rights' Fourth Amendment prohibits unreasonable searches and, in general, has been interpreted to mean warrantless searches are unreasonable.

The legal push in Colorado federal court, and a parallel legislative effort in Congress to update the 1986 Electronic Communications Privacy Act, is likely to put the coalition at odds with the Obama administration.

A few weeks ago, for instance, Justice Department prosecutors told a federal appeals court that Americans enjoy no reasonable expectation of privacy in their mobile device's location and that no search warrant should be required to access location logs.

The U.S. Attorney's office in Colorado did not immediately respond to a request for comment.

Question to our resident lawyers. If a magistrate judge already ordered Yahoo to hand over the info, isn't that the same as a warrant or does that require a higher scrutiny?

I also wonder how the DOJ defines "electronic storage" as previously opened emails are still stored electronically.
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Old 04-16-10, 12:52 PM
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Re: Should police need a warrant to read emails?

http://volokh.com/2010/04/14/does-fe...han-a-warrant/
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Old 04-16-10, 01:12 PM
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Re: Should police need a warrant to read emails?

Here's what wiki says about the law:

The SCA targets two types of online service, "electronic communication services" and "remote computing services." The statute defines an electronic communication service as "…any service which provides to users thereof the ability to send or receive wire or electronic communications…." A remote computing service is defined as "…the provision to the public of computer storage or processing services by means of an electronic communications system." Section 2703 of the SCA describes the conditions under which the government is able to compel an ISP to disclose "customer or subscriber" content and non-content information for each of these types of service:

• Electronic communication service. If an unopened email has been in storage for 180 days or less, the government must obtain a search warrant. There has been debate over the status of opened emails in storage for 180 days or less, which may fall in this category or the "remote computing service" category.

• Remote computing service. If a communication has been in storage for more than 180 days or is held “solely for the purpose of providing storage or computer processing services” the government can use a search warrant, or, alternatively, a subpoena or a “specific and articulable facts” court order (called a 2703(d) order) combined with prior notice to compel disclosure. Prior notice can be delayed for up to 90 days if it would jeopardize an investigation. Historically, opened or downloaded email held for 180 days or less has fallen in this category, on the grounds that it is held “solely for the purpose of storage.”

§ 2702 of the SCA describes conditions under which a public ISP can voluntarily disclose customer communications or records. In general, ISP’s are forbidden to “…divulge to any person or entity the contents of any communication which is carried or maintained on that service.” However, ISP’s are allowed to share “non-content” information, such as log data and the name and email address of the recipient, with anyone other than a governmental entity. In addition, ISP’s who do not offer services to the public, such as businesses and universities, can freely disclose content and non-content information.
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Old 04-16-10, 01:13 PM
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Re: Should police need a warrant to read emails?

I think we need to clarify whether we mean 'should' in the normative sense or 'should' in the legal/constitutional sense. For the former I say, 'no', for the latter, 'I don't know.'
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Old 04-16-10, 01:18 PM
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Re: Should police need a warrant to read emails?

I guess I don't see why some people draw a distinction between virtual and real space with this issue. If I maintained a warehouse and offered to store people's old mail as long as they looked at some ads I'd let companies pay to put up around the place, I believe the authorities would need a search warrant to go rifling through it.
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Old 04-16-10, 01:35 PM
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Re: Should police need a warrant to read emails?

Originally Posted by maxfisher View Post
I guess I don't see why some people draw a distinction between virtual and real space with this issue. If I maintained a warehouse and offered to store people's old mail as long as they looked at some ads I'd let companies pay to put up around the place, I believe the authorities would need a search warrant to go rifling through it.
Exactly. This distinction of electronic communication is troubling.
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Old 04-16-10, 01:55 PM
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Re: Should police need a warrant to read emails?

This issue is the "third-party doctrine", which basically says your right to privacy is reduced when you expose information to a third party. In the process of delivering mail the ISP has a confidentiality privilege, but as a data storage service it does not.

So the key issue is, have you shared your communication with a 3rd party?

I would say no, but then again, what about services like Gmail, which read email contents, including stored emails, to target ads.

@Maxfisher
What if, as part of your mail storage operation, you said you would read through my mail in order to find out what kind of ads might interest me. By agreeing to that, have I waived privilege?
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Old 04-16-10, 02:23 PM
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Re: Should police need a warrant to read emails?

Originally Posted by wmansir View Post
This issue is the "third-party doctrine", which basically says your right to privacy is reduced when you expose information to a third party. In the process of delivering mail the ISP has a confidentiality privilege, but as a data storage service it does not.

So the key issue is, have you shared your communication with a 3rd party?

I would say no, but then again, what about services like Gmail, which read email contents, including stored emails, to target ads.

@Maxfisher
What if, as part of your mail storage operation, you said you would read through my mail in order to find out what kind of ads might interest me. By agreeing to that, have I waived privilege?
With the stringent privacy policies in place, I think a reasonable individual would assume they hadn't waived the privilege. As for the technicalities of the law, I'm not informed enough to say if it has been technically waived, but I'll say that it shouldn't be. Just curious, but warrants are required to obtain someone's financial history through their bank, aren't they? Seems like a similar situation from a legal perspective.
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Old 04-16-10, 02:26 PM
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Re: Should police need a warrant to read emails?

Your Obama/Holder DOJ at work. Change.
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Old 04-16-10, 04:00 PM
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Re: Should police need a warrant to read emails?

Originally Posted by Red Dog View Post
Your Obama/Holder DOJ at work. Change.
The is one of the things about many (not all) on the left that's annoyed me since Obama took office. If Bush's justice department had done this, there would be very loud cries from a good portion of the left about its effect on civil liberties, and rightfully so. Since it's Obama's justice department, while there are some on the left protesting this, they're few and far between.

(edited to fix stupid grammar error)

Last edited by wildcatlh; 04-16-10 at 04:08 PM.
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Old 04-16-10, 04:03 PM
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Re: Should police need a warrant to read emails?

Yep - you nary hear a peep from that side on Obama and Holder's approach to civil liberties. This forum is a perfect example. Truly sad.
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Old 04-16-10, 04:05 PM
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Re: Should police need a warrant to read emails?

it is the sad "team" mentality most people have about politics. You don't want to speak out against your team because you don't want to hurt them even if you disagree with them.
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Old 04-16-10, 04:06 PM
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Re: Should police need a warrant to read emails?

That's because Obama is known to be a civil libertarian by everyone. He wouldn't dare violate someone's civil liberties. He'd rather die and go to hell than to do that.
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Old 04-16-10, 04:08 PM
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Re: Should police need a warrant to read emails?

I don't want the police to be able to read emails. Then the gov't will read emails and will see that I've been left tons of money by Nigerian Princesses and the King of Sudan and I'll quickly get taxed on all that income.
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Old 04-16-10, 04:11 PM
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Re: Should police need a warrant to read emails?

Not sure if anything new is in this article, but thought it might be worth posting?

Yahoo Beats Feds in E-Mail Privacy Battle

Yahoo prevailed Friday over Colorado federal prosecutors in a legal battle testing whether the Constitution’s warrant requirements apply to Americans’ e-mail.

Saying the contested e-mail “would not be helpful to the government’s investigation,” (.pdf) the authorities withdrew demands for e-mail in a pending and sealed criminal case. For the moment, the move ends litigation over the hotly contested issue of when a warrant under the Fourth Amendment is required for Yahoo and other e-mail providers to release consumer communications to the authorities.

The brouhaha concerned a 1986 law that already allows the government to obtain a suspect’s e-mail from an internet service provider or webmail provider without a probable-cause warrant, once it’s been stored for 180 days or more. The government contended, and then backed off Friday, that it could get e-mail less than 180-days old if that e-mail has been read by the owner, and that the Constitution’s Fourth Amendment protections don’t apply.

Yahoo was backed (.pdf) by the Electronic Frontier Foundation, Google and the Center for Democracy & Technology in challenging the government’s position. It defied a court order to turn over those e-mails to the feds in Colorado criminal probe that is under seal. Litigation over the topic ensued, and the government blinked in a legal standoff highlighting antiquated privacy laws.

Had the courts adopted the government’s position, (.pdf) the vast majority of Americans’ e-mail would be accessible to the government without probable cause, whenever law enforcement believes the messages would be relevant to a criminal investigation, even if the e-mail’s owner was not suspected of wrongdoing.

Still, the government’s move does not resolve the privacy issue, but merely instead delays it for a later day.

The legal jockeying began Dec. 3, when a Colorado magistrate ordered Yahoo to hand over to authorities e-mail communications under six months old “received by the specified accounts that the owner or user of the account has already accessed, viewed or downloaded.”

Yahoo refused, claiming the Stored Communications Act requires the government to show probable cause to obtain that e-mail. (.pdf) The government asserted a lesser, warrantless standard that the “communications sought are relevant and material to an ongoing criminal investigation.”

The difference between those standards is the subject of fierce debate in the legal community.

But all sides agree that obtaining unopened e-mail less than 180 days old requires the authorities to make a probable-cause showing to a judge, and that after 180 days stored e-mail — read or unread — can be accessed without such a warrant.

The 1986 Stored Communications Act was enacted at a time when e-mail generally wasn’t stored on servers at all, but instead passed through them briefly on their way to the recipient’s inbox. In today’s reality, e-mail can, and is, being stored on servers forever. A consortium of businesses, including Google and Microsoft, recently asked Congress to update the law and require probable cause to obtain any e-mail.

Until Friday, the government’s position in the Colorado case tried to push the outdated law even further. Prosecutors were arguing that opened e-mail less than 180 days old is no longer in “electronic storage” as defined by the law — which allows the feds to obtain that e-mail without probable cause.
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Old 04-16-10, 04:51 PM
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Re: Should police need a warrant to read emails?

So for those who think this is worrisome and reprehensible, but also want the FCC to regulate the internet.

How do you reconcile those beliefs? Do you not think the privacy concerns are valid?
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Old 04-16-10, 04:59 PM
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Re: Should police need a warrant to read emails?

What if the hackers are unionized?
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Old 04-16-10, 05:00 PM
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Re: Should police need a warrant to read emails?

Originally Posted by Red Dog View Post
Your Obama/Holder DOJ at work. Change.
Yes, the "change" is in who complains about what they do.
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Old 04-16-10, 05:06 PM
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Re: Should police need a warrant to read emails?

Originally Posted by Dr Mabuse's article View Post
But all sides agree that obtaining unopened e-mail less than 180 days old requires the authorities to make a probable-cause showing to a judge, and that after 180 days stored e-mail — read or unread — can be accessed without such a warrant.
I don't like the above at all.
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Old 04-16-10, 05:26 PM
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Re: Should police need a warrant to read emails?

Originally Posted by Lemmy View Post
Well, then, that's a whole 'nother ballgame, they have rights! .....just kidding, kill them.
I think I am starting to understand you.

Good:
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Old 04-16-10, 08:56 PM
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Re: Should police need a warrant to read emails?

Originally Posted by Lemmy View Post
pretty much
I found some mashup compilations after your list and I agree with you 100% about mashups. I used to think they were stupid, but I really like some of them a lot. A good mashup takes a lot of skill.
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Old 04-16-10, 09:29 PM
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Re: Should police need a warrant to read emails?

So now I suppose we have to take back the "thank you" to the democrats for saving us from the Bush Regime that was trying to kill our civil liberties.

But hey, he lowered taxes
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Old 04-16-10, 09:44 PM
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Re: Should police need a warrant to read emails?

Saying the contested e-mail “would not be helpful to the government’s investigation,” (.pdf) the authorities withdrew demands for e-mail in a pending and sealed criminal case. For the moment, the move ends litigation over the hotly contested issue of when a warrant under the Fourth Amendment is required for Yahoo and other e-mail providers to release consumer communications to the authorities.
I assume this is one of those cases where the feds thought they might lose, and will just try to come back later to a more sympathetic judge?
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Old 04-16-10, 09:49 PM
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Re: Should police need a warrant to read emails?

No, I think this is one of those times they realized the were wrong.
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Old 04-16-10, 09:50 PM
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Re: Should police need a warrant to read emails?

<img src=http://w3.gorge.net/kvrdave/lol.gif>
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