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June 18, 2007

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» The 4th Amendment in your inbox from Technology & Marketing Law Blog
By Ethan Ackerman While the 4th Amendment gets litigated more often than, say, the 10th Amendment, it is still rare... [Read More]

» Gov't Says: No Right To Privacy from Death By Email Blog
The government can read anybody's email at any time without a warrant. [Read More]

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jimbino

Egad. It's "those data."

Randy Picker

thanks. fixed.

nessy

From what I have been told by most sys admins, you should operate under the assumption that all e-mail is being read.

Stephen

Email isn't quite like sending a phone conversation across a wire. Normally, your ISP holds a copy of your email on their remote server until you download it. And then, usually the email remains on the server unless your email program asks the server to delete the email. This may or may not be the default; it depends on your software. (The exception is if you are running your own server, which most people are not.) So for a certain period of time at least, almost everyone's email is stored on a remote server.

I don't know if that really changes anything you've said (probably not).

paul

Depending on how this case ultimately goes, this is one of the reasons I've been watching the growth of the whole "web services" sector with such ambivalence. Once your documents are somewhere out there in the cloud, especially (in the US) under the current trend toward authoritarianism and data mining, it's much easier for prosecutors and courts to make and sustain the argument that there really isn't an expectation of privacy.

The third-party aspects also change the calculations for a subpoena, because the third party holding the data has only indirect and second-order interests in attempting to quash even the flimsiest request. (They might not want to spend the money on an infrastructure for compliance, or they might think, in the few competitive situations left, that a reputation for too-easy compliance will lose them subscribers, but otherwise why buy trouble?)

Joan A. Conway,

Can George Soros' Open Society be far off?

DigitalCommando

When sending an e-mail, it is generally intended for review by a person or company of your choice. When you postal mail a letter to someone, you are not expecting (and would not desire) a multitude of unknown persons to open your letter and read or photocopy it's contents. E-mails should have the same expectations. I dont know anyone who would knowingly sign on with an e-mail provider that would specialize in distributing your e-mails to thousands of people so they could read them, and that you would agree to that up front. So clearly, we have an expectation of privacy with our mail and our e-mails. E-mails are simply "inaudible communications" that should enjoy the same protections that telephone conversations and postal mail have. We need to stop being duped by the argument that e-mails transmission method somehow makes it ok that we should not have an expectation of privacy because it travels through so many places and we seemingly have no control over it.

CCM

I am bit late with my comments, however, I wonder if someone who understands what the Sixth Circuit was doing here can answer my question. It appeared to me that the court relied on US v. Simons to say that a user's reasonable expectation of privacy may be extinguished by a user agreement which explicitly provides that emails and other files will be monitonered or audited. My understanding was that Simons applied to service provider functions and duties, where monitoring, auditing and inspecting are allowed for the protection of and to ensure an employee's appropriate use of an employer's computer network/system. In Warshak, the acquisition of email content and other information was done at the request of a law enforcement agency. This activity includes the identification and targeting of a person as a subject of investigation for crimnal prosecution. This differs from the service provider's function and purpose. Should that distinction not make a difference under the fourth amendment?

If I understand the court's opinion correctly, I agree the Miller line of cases should not apply to electronic communications; but then to say law enforcement agencies can get around the fourth amendment simply by an ISP's use of a banner or user agreement, seem to fly in the face of societal expectation of what is private and what is not. Please help.

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