Appeals court rules emails protected by 4th Amendment

[Winehole23]

Breaking News on EFF Victory: Appeals Court Holds that Email Privacy Protected by Fourth Amendment (https://www.eff.org/deeplinks/2010/12/breaking-news-eff-victory-appeals-court-holds)

News Update (https://www.eff.org/blog-categories/news-update)
by Kevin Bankston (https://www.eff.org/about/staff/kevin-bankston)


In a landmark decision issued today (https://www.eff.org/files/warshak_opinion_121410.pdf) in the criminal appeal of U.S. v. Warshak (https://www.eff.org/cases/warshak-v-united-sta), 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 (https://www.eff.org/files/filenode/Warshak_EFF_Amicus_Brief.pdf), 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 (https://www.eff.org/files/filenode/warshak_v_usa/warshak_amicus.pdf) with the 6th Circuit in 2006 in a civil suit (https://www.eff.org/cases/warshak-v-usa) brought by criminal defendant Warshak against the government for its warrantless seizure of his emails. There, the 6th Circuit agreed with EFF (https://www.eff.org/press/releases/2007/06#005321) 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 (https://www.eff.org/deeplinks/2008/07/sixth-circuit-dodges-constitutional-question-email) 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 (https://www.eff.org/press/archives/2010/03/30) 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."




AttachmentSize warshak_opinion_121410.pdf (https://www.eff.org/files/warshak_opinion_121410.pdf)316.97 KB Related Issues: Privacy (https://www.eff.org/issues/privacy)
Related Cases: Warshak v. United States (https://www.eff.org/cases/warshak-v-united-sta), Warshak v. USA (https://www.eff.org/cases/warshak-v-usa)

[boutons_deux]

And IPsec "is rumored", "some say", to have an FBI-financed backdoor.

If this goes to SCOTUS, we'll have another example of 5 Repug extremist activists supporting the govt/institutions over the "God-given, inalienable" rights of citizens.

[LnGrrrR]

Good call. Let's see how it plays out...

[Winehole23]

Back in September, we noted that Senator Patrick Leahy, who has been working on (http://www.techdirt.com/articles/20120913/22534720379/senator-leahy-brings-back-bill-that-would-require-warrants-when-govt-snoops-through-servers-your-info.shtml) much needed reforms for ECPA (the Electronic Communications Privacy Act) -- such as requiring law enforcement get a warrant to read your email -- had attached his ECPA reform plan to an update of the Video Privacy Protection Act (VPPA). While I know some privacy folks were worried about this update to the VPPA, I don't have much of a problem with it. The original VPPA, written as a quick response to a video store revealing Robert Bork's (somewhat boring) video rental history during his Supreme Court nomination hearings, did seem a bit limiting -- especially for online video sites such as Netflix that wanted to add some useful social features. However, it was the ECPA reform part that was more important. Attaching ECPA reform to VPPA reform didn't make some privacy folks happy, but they seemed willing to go along with the VPPA changes if it really meant that we'd get warrant requirements for emails and other digital messages.

There were some attempts to water down that ECPA reform at the end of last month, but the Senate Judiciary Committee kept the warrant requirement (http://www.techdirt.com/articles/20121129/12241721176/senate-committee-approves-ecpa-reform-that-requires-warrants-will-it-ever-become-law.shtml) in there and rejected various attempts to weaken the bill. As we noted, however, it still was a long way from becoming law, given the need to pass a full Senate vote and to have a companion House bill make the rounds. We assumed that there would be no movement until next year and the new Congress.

But... late last week, the House rubberstamped (http://news.cnet.com/8301-1023_3-57559919-93/house-approves-netflix-backed-changes-to-video-privacy-law/) the VPPA update, and the Senate, almost immediately signed off on the House's version (http://www.wired.com/threatlevel/2012/12/congress-caves-privacy/), which the President is expected to sign any moment now. In case you missed it, that means that the ECPA reforms -- which were supposed to be bundled with the VPPA to make the whole thing palatable -- got dropped entirely. And now we get the VPPA reforms and no ECPA reform at all (http://www.allgov.com/news/top-stories/congress-at-last-minute-drops-requirement-to-obtain-warrant-to-monitor-email-121225?news=846578). Neat trick. "Bundle" two things to get support... and then at the last minute drop one part and rush through the other.http://www.techdirt.com/articles/20121227/02441521496/apparently-congress-isnt-actually-interested-requiring-warrant-law-enforcement-to-read-your-email.shtml

[Winehole23]

The Justice Department has dropped its long-standing objection to proposed changes that would require law enforcement to get a warrant before obtaining e-mail from service providers, regardless of how old an e-mail is or whether it has been read.

“There is no principled basis” to treat e-mail less than 180 days old differently than e-mail more than 180 days old, Elana Tyrangiel, acting assistant attorney general in the department’s Office of Legal Policy, said Tuesday.





Tyrangiel, testifying before a House Judiciary subcommittee, also said that opened e-mail should have no less protection than unopened e-mail.


Current law requires law enforcement to obtain a warrant before gaining access to e-mail that is 180 days old or less if it has not been opened. But prosecutors may obtain e-mail older than 180 days, or any e-mail that has been opened, with a mere subpoena.


Prosecutors can obtain a subpoena if they believe that the material sought would be relevant to an investigation. For a warrant, they need to convince a judge that the e-mail contains probable cause of a crime.
The department’s shift means that legislative efforts to amend the 1986 Electronic Communications Privacy Act stand a better chance at succeeding. Lawmakers have drafted legislation (http://www.washingtonpost.com/world/national-security/senate-panel-backs-e-mail-privacy-bill/2012/11/29/e2dafcd4-3a43-11e2-a263-f0ebffed2f15_story.html) that would impose a warrant requirement for all e-mail held by commercial providers.


In practice, since a 2010 ruling by the U.S. Court of Appeals for the 6th Circuit requiring a warrant for stored e-mail, most large commercial e-mail providers, such as Google and Yahoo, have adopted that standard.
That has made it harder for the department to argue that a warrant requirement undermines public safety, said Jason Weinstein, a former deputy assistant attorney general in the criminal division.

http://www.washingtonpost.com/world/national-security/justice-dept-drops-fight-against-tougher-rules-to-access-e-mail/2013/03/19/890edc5c-90c4-11e2-9abd-e4c5c9dc5e90_story.html?wpisrc=nl_headlines

[boutons_deux]

http://www.washingtonpost.com/world/national-security/justice-dept-drops-fight-against-tougher-rules-to-access-e-mail/2013/03/19/890edc5c-90c4-11e2-9abd-e4c5c9dc5e90_story.html?wpisrc=nl_headlines

:lol

the cia/fbi/nsa already has vacuumed up all emails domestic and international since 9/11. It's simply "unreasonable", iow you're naively nuts, to expect ANY privacy.

[TeyshaBlue]

Expectation of privacy is codified in the 4th amendment. It's not unreasonable.

[Winehole23]

It's simply "unreasonable", iow you're naively nuts, to expect ANY privacy.no, it isn't.

the courts occasionally stand up for rights against excesses of power, but by all means feel free to roll over on your back and mock all those who don't.

[boutons_deux]

no, it isn't.

the courts occasionally stand up for rights against excesses of power, but by all means feel free to roll over on your back and mock all those who don't.

VERY occasionally, and "nat sec" snooping is by definition beyond the reach of citizens, totally secret.

[Winehole23]

not disputed. it's your blithe disdain for any who criticize the status quo or point out its problems, that grates.

[z0sa]

Boutons is resigned to his fate as long as he can blame red team for every transgression.

[hater]

unless you are versed on PGP, encryption, tokens and such, you should follow a simple rule:
- if you have to use a screen to read it, or a speaker to hear it, it's NOT PRIVATE

[Winehole23]

Stickland's warrants-for-cloud-content amendment continues to rack up media praise
Texas state Rep. Jon Stickland's amendment to HB 2268 requiring warrants for cloud-based email and other computer content held by third parties continues to get good press, recently garnering him rare, unreserved praise from a Texas daily, the Fort Worth Star Telegram, which on June 12 issued a staff editorial ("Texas freshman legislator set a standard on privacy law (http://www.star-telegram.com/2013/06/12/4933366/texas-freshman-legislator-set.html)") which opened:

Darned if the new guy from Bedford didn’t accomplish something of national importance in privacy law during his first term as a state representative.

Republican Rep. Jonathan Stickland, 29, was elected last year in District 92 with strong conservative and Tea Party backing. Todd Smith had vacated the seat in an unsuccessful run for the Senate.

As is the way of life for legislative freshmen, Stickland was relegated by many senior members to “seen but not heard” status. Still, he vowed to compile the most conservative voting record of anyone in the House — and he might have achieved that distinction or something close to it.

But what might turn out to be Stickland’s most important first-term accomplishment is the amendment he successfully attached to House Bill 2268, which has been sent to Gov. Rick Perry. (Ed. note: The bill was signed and has become Texas law.)

The amendment set national precedent by requiring law enforcement officers to get a warrant for access to someone’s email or customer data stored by an electronic service provider. Congrats again to Rep. Stickland, his staff, and everyone at TXEPC (http://txepc.org/what-we-stand-for/) who worked on the bill. As I've told several reporters recently, this was a big accomplishment for a freshman. Here are some links to additional, recent coverage of Sticland's email bill. (See earlier coverage rounded up here (http://gritsforbreakfast.blogspot.com/2013/05/national-tech-press-loves-stickland.html), here (http://gritsforbreakfast.blogspot.com/2013/05/texas-first-state-to-require-warrants.html), and here (http://gritsforbreakfast.blogspot.com/2013/06/drug-cases-dropped-from-misconduct-and.html).)


Before It's News: One Giant Leap for Privacy: Texas now requires warrant for content (http://beforeitsnews.com/libertarian/2013/06/one-giant-leap-for-privacy-texas-now-requires-a-warrant-for-content-2510540.html)
The Daily Dot: Texas enacts email privacy law (http://www.dailydot.com/politics/texas-rick-perry-email-privacy/)
Tom's Guide to tech for real life: Texas law now can't snoop in email without a warrant (http://www.tomsguide.com/us/email-cloud-storage-ECPA-Texas-Department-of-Justice,news-17105.html)
CultureMap Austin: Texas to feds: Come and take it (our digital data) (http://austin.culturemap.com/news/life/06-15-13-texas-to-feds-come-and-take-it-our-digital-data/)
Red Alert Politics: New law in Texas requires warrants to search emails (http://redalertpolitics.com/2013/06/21/new-law-in-texas-requires-warrants-to-search-e-mails/)
Higher Thinking Primate: Texas becomes first state to require warrant for email spying (http://higherthinkingprimate.com/2013/06/21/texas-becomes-first-state-requiring-a-warrant-for-email-spying/)
Naked Security: Texas becomes first US state to ban warrantless email spying (http://nakedsecurity.sophos.com/2013/06/19/texas-becomes-first-us-state-to-ban-warrantless-email-snooping/)
The Unhived Mind: Strongest email privacy law signed by Texas governor (http://theunhivedmind.com/wordpress3/2013/06/19/strongest-email-privacy-law-signed-in-by-texas-governor/)
Tech and Gadget News: Tea Party Republicans and 'liberal weenies' alike celebrate Texas email privacy law (http://techandgadgetnews.com/tea-party-republicans-and-liberal-weenies-alike-celebrate-texas-email-privacy-law/)
Llodo.com: Email snooping corralled in Texas: Other states may follow (http://llodo.com/email-snooping-corralled-in-texas-other-states-may-follow.html)


Finally, a related update: Regular readers know that there's federal legislation moving to plug the same loophole in federal law that Stickland's amendment addressed in Texas' Code of Criminal Procedure. Here's a recent story on the House version (http://vr-zone.com/articles/new-bill-would-put-an-end-to-warrant-less-e-mail-seizures-in-the-u-s/19202.html) of that federal legislation, which includes among its coauthors Texas Congressman Ted Poe.

http://gritsforbreakfast.blogspot.com/2013/06/sticklands-warrants-for-cloud-content.html?spref=fb

[TeyshaBlue]

Those fucking red state bubbas.

[MannyIsGod]

Broken clock, tbh

[TeyshaBlue]

Broken clock, tbh

Texas has been at the forefront of alot of privacy issues, tbh. Free your mind.

[TeyshaBlue]

From Dec 2000

http://www.window.state.tx.us/etexas2001/recommend/ch01/eg09.html

[MannyIsGod]

They've been at the forefront of a lot of shit issues too. What part of my mind needs to be freed? Texas GOP members are capable of putting out good legislation but the vast majority of the stuff they put out is utter shit. Need turn the clock back no further than 13 hours to see evidence of that.

[TeyshaBlue]

I was speaking within the context of WH's post. Didn't know you were going all boutons on me.

[MannyIsGod]

I was speaking within the context of WH's post. Didn't know you were going all boutons on me.

LOL you were being snarky as shit and you just didn't like when I got snarky with you.

[TeyshaBlue]

Snark is always appreciated. I fucking live on snark. Boutonsing is pretty fucking stupid.

[MannyIsGod]

LOL how am I boutons now? Because I said "broken clock"? Or because I pointed out that the Texas GOP pretty much gets very little right?

[TeyshaBlue]

LOL how am I boutons now? Because I said "broken clock"? Or because I pointed out that the Texas GOP pretty much gets very little right?

Again, within the confines of the thread, it's a virtual non sequitur. I didn't call you boutons, dude. I invented an adjective...or an adverb...or an adjecverb.

[MannyIsGod]

K - within the thread Hail Red State Bubbas.

[TeyshaBlue]

K - within the thread Hail Red State Bubbas.

http://i3.photobucket.com/albums/y64/teyshablue/078_zps883d3ed1.gif (http://s3.photobucket.com/user/teyshablue/media/078_zps883d3ed1.gif.html)