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How The Fucken Fucke Is This Not Open-And-Shut Constitutionally Mandated?

While I guess this is good, can someone explain to me how the older law is not without-any-question-whatsoever in violation of the Fourth Amendment?

The Senate Judiciary Committee voted overwhelmingly on Thursday to require police to obtain a warrant before reading people’s emails, Facebook messages and other forms of electronic communication.

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The vote is a victory for privacy advocates, who argue that current privacy rules are woefully out of date, and Leahy, who has been pushing for the change for two years.

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Under the Electronic Communications Privacy Act (ECPA) of 1986, police only need a subpoena, issued without a judge’s approval, to read emails that have been opened or that are more than 180 days old.

The Fourth Amendment reads as follows:

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.

Comments

  1. F [disappearing] says

    How are so many such things not clearly and correctly defined? For instance, why is the DHS in the business of seizing domain names as copyright cops for the entertainment industry on no real evidence and willful misinterpretation of law?

    This is good, because the legislation and court rulings tend to go the opposite way.

  2. says

    The reason this happened is that, in 1986, no one ever imagined that email would stored on servers (space limitations). It was assumed that email would downloaded to individual computers, for which warrants are necessary.

  3. says

    The assertion is that if I store a bunch of my personal physical documents–i.e., constitutional “papers”–at a third-party storage facility, then the government doesn’t need a warrant in order to force the proprietor of the storage facility to turn over my documents? Because this is the only possible basis on which there can be a constitutional distinction between e-mails I have stored on my home computer and e-mails I have stored on Google’s servers.

  4. gingerest_ says

    This was the old, old days, CPP – as I understand it, they thought of mail servers as like the post office, because in order to read it, a user nearly always had to pick it up and carry it away to the local terminal. The original copy would then usually be deleted from the mail server. If you didn’t download it, you were assumed to have abandoned it, and just as with abandoned mail at the post office, you’ve surrendered ownership, so there’s no expectation of privacy.

  5. meursalt says

    @gingerest_ Not to nitpick, but when the local terminals were true terminals, they were not likely to have anything resembling local storage more than a scrollback buffer. When one’s mail client retrieved one’s mail from the server spool, it was typically copied to one’s home directory, often on the same server before POP3 and other remote mail retrieval protocols became commonplace. So, stretching the metaphor, one read one’s mail in the post office, and if one chose to save it rather than discard it after reading, it was stored in the post office as well. One rarely had a choice in these matters. So these supposedly mitigating factors simply were not the reality in many cases.

    I’m not sure, but my suspicion is that the earlier law was motivated by the strict law and order mentality regarding shared computing resources that arose in the mid-80’s. There had been a high profile breach of an E911 system (or servers associated with one anyway) around ’84 or thereabouts, and the public was just beginning to become aware of the risks posed by both rogue staff and electronic intruders with access to IT resources (not that I think that phrase was used back then) belonging to financial and government institutions.

    From 1984 to 1988 a flurry of state and federal laws were passed making “unauthorized use of a computing resource” a felony. Computer intrusions had previously been tried under more generic wire fraud laws. Mostly harmless teenagers were incarcerated for years for doing nothing substantially different from what happens if you carry an iPhone on default settings past an unsecured wireless network. Incidentally, most of these laws are still on the books, though only selectively enforced in the more egregious cases. Think about that next time you hop on to a random wireless network.

    Back then, relatively few people even knew what e-mail was, let alone used it, so a law like this would have passed without complaint. I’m not sure if the older law CPP mentions was motivated by the same factors as the laws I mentioned above, but it is certainly consistent with attitudes of the time. I agree with CPP that the law violated both the spirit and any reasonable interpretation of the letter of the Fourth Amendment, but I’m not a bit surprised that it would have easily passed in 1986.

  6. meursalt says

    I forgot to mention that any site performing proper backups would be likely to have archived one’s email before one deleted it, which is another strike against the “post office” rationale for a law like this.

  7. Ben P says

    The assertion is that if I store a bunch of my personal physical documents–i.e., constitutional “papers”–at a third-party storage facility, then the government doesn’t need a warrant in order to force the proprietor of the storage facility to turn over my documents? Because this is the only possible basis on which there can be a constitutional distinction between e-mails I have stored on my home computer and e-mails I have stored on Google’s servers.

    The law doesn’t twin up to reality here well.

    The usual reason that is offered is that your ISP has the right to read your emails, therefore you have no reasonable expectation of privacy in their contents.

    The easy analogy here is taping a phone call via one party to it. If the police want to tap someones phone, they have to obtain a warrant, because you have a reasonable expectation of privacy in your private phone conversation. However, suppose you’ve entered into a conspiracy with another individual to rob a bank. Unbeknownst to you, the individual has second thoughts and goes to the cops. When you call him to plan robbing the bank, he has police in the room with him, recording your phone call, no warrant.

    valid? Yes.

    The court will find you have no reasonable expectation of privacy in information that you’re revealing to a third party.

    A different, although also unfair, example illustrates a similar concept.

    The police arrest you, read you your “miranda rights,” and you invoke your rights to silence and counsel. From this point on the police are not allowed to question you without your lawyer present.

    So the police take you out of your interrogation room, put you in a holding cell with two other individuals. Unbeknownst to you, one of those other individuals is a jailhouse informant, whom the police have paid and asked to see if he can get you to voluntarily reveal any information.

    The jailhouse informant asks you “What are you in for” and you say “I robbed a convenience store.”

    The police will then have that informant testify to what you told him. You say, “but the police werent’ allowed to question me” and they will say “we didn’t, you voluntarily told this information to someone else you didn’t believe was acting as an officer.”

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