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Government Has a Right to Read Your Email?

ScuttleMonkey posted more than 7 years ago | from the no-peeking dept.

Privacy 382

gone.fishing writes to tell us that a new lawsuit is challenging the government's right to read your e-mail. The Minneapolis Star-Tribune is reporting that a seller of "natural male enhancement" products sued after a fraud indictment based on evidence gleaned from his electronic mail. Federal prosecutors say they don't need a search warrant to read your e-mail messages if those messages happen to be stored in someone else's computer."

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382 comments

What part of (5, Insightful)

Marxist Hacker 42 (638312) | more than 7 years ago | (#17316240)

No Reasonable Expectation of Privacy in the Public Domain don't you understand?

Like it or not, the Internet was built by the Federal Government- and it very much is the public domain. Any message sent across it unencrypted is just as much fair game for prosecutuion as taking a picture of you mooning other cars on the freeway.

Re:What part of (1)

AcidLacedPenguiN (835552) | more than 7 years ago | (#17316326)

Any message sent across it unencrypted is just as much fair game for prosecutuion as taking a picture of you mooning other cars on the freeway.
You mean they can get me for that??

Re:What part of (5, Funny)

ArcherB (796902) | more than 7 years ago | (#17316588)

--> Any message sent across it unencrypted is just as much fair game for prosecutuion as taking a picture of you mooning other cars on the freeway.

You mean they can get me for that??


Only if they run the image through their new ass-recognition software.

Re:What part of (5, Insightful)

Mr. Underbridge (666784) | more than 7 years ago | (#17316328)

Like it or not, the Internet was built by the Federal Government- and it very much is the public domain. Any message sent across it unencrypted is just as much fair game for prosecutuion as taking a picture of you mooning other cars on the freeway.

That's not the argument they're making. They're arguing that since you don't own the computer the message is stored on, you have no right to privacy.

That makes no sense, however. I don't own the phone network once it leaves my house (more precisely, the NID), but I have a right to privacy as defined by quite a bit of legislation.

Like it or not, the Internet was built by the Federal Government- and it very much is the public domain

Don't know where to start with this one. First, when we talk about "public domain," we're talking copyrightable works. The internet isn't copyrightable. Second, the government doesn't own the individual links in the internet backbone.

In short, I'm having a hard time seeing why an unsecured communication between two people should be protected when it's a phone conversation taking place over, say, Verizon-owned fiber, but not if it's an email saved on a Verizon-owned hard drive.

Re:What part of (4, Insightful)

Marxist Hacker 42 (638312) | more than 7 years ago | (#17316522)

Different public domain. When you're talking privacy laws, the Internet is more like FedEx, UPS, or your local city park than it is like a phone line or the highly protected US Mail.

Re:What part of (2, Insightful)

jacem (665870) | more than 7 years ago | (#17316876)

To add to your point. Letters in seeled envelopes {sp} are protected postcards are not. If I send a postcard I can't assume that only the addressed recipient will turn it over and read it. But, I can assume the the seeled envelope will arrive seeled.

JACEM

Re:What part of (4, Informative)

grylnsmn (460178) | more than 7 years ago | (#17316688)

That's not the argument they're making. They're arguing that since you don't own the computer the message is stored on, you have no right to privacy.

That makes no sense, however. I don't own the phone network once it leaves my house (more precisely, the NID), but I have a right to privacy as defined by quite a bit of legislation.

That right there is the key. There is quite a bit of legislation protecting phone conversations. There isn't similar legislation in the case of emails.

In addition to that, the police do not need a warrant if they have permission from the owner. For example, if you get pulled over by the police, they don't need a warrant to search your car if they ask you for permission and you say "yes". Similarly, if they ask Verizon for the emails in a user's account, and Verizon gives it to them, it is perfectly legal without a warrant. The theory is that if the owner does not object to the search/seizure, then it must not be unreasonable.

Re:What part of (2, Interesting)

TheUnknown (90519) | more than 7 years ago | (#17316770)

I agree with your post but there's a small detail I want to correct. In your example, if you are a customer of Verizon, they might not be able to legally give your emails to the police without a warrant. That depends on the contract they have with you (most likely the TOS). But it is likely the TOS does not include such protections for you.

Re:What part of (2, Informative)

grylnsmn (460178) | more than 7 years ago | (#17316808)

I agree with your post but there's a small detail I want to correct. In your example, if you are a customer of Verizon, they might not be able to legally give your emails to the police without a warrant. That depends on the contract they have with you (most likely the TOS). But it is likely the TOS does not include such protections for you.

They could still legally give your emails to the police, but then they would be in breach of contract. At that point, you would have to file a civil case against them. The emails would still be considered admissible evidence in a criminal case against you.

Difference between phone & email (1, Insightful)

Anonymous Coward | more than 7 years ago | (#17316704)

In short, I'm having a hard time seeing why an unsecured communication between two people should be protected when it's a phone conversation taking place over, say, Verizon-owned fiber, but not if it's an email saved on a Verizon-owned hard drive.

Because there are very specific laws protecting phone calls.

Unencrypted email is more like a post card with no envelope than a sealed letter -- anyone who's system it passes by can see it so easily that there really is no expectation of privacy.

  • If you want to send confidential material through physical mail, you put it in an envelope -- otherwise, lots of people can see it.
  • If you want to send confidential material through email, you encrypt it -- otherwise, lots of people can see it.
Why more people don't use encrypted email boggles my mind.

Re:Difference between phone & email (0)

Anonymous Coward | more than 7 years ago | (#17316774)

Why more people don't use encrypted email boggles my mind.


I'd encrypt all my email, but then none of my friends and family would be able to read it. Even if they had the technical confidence (which they don't), 90% of them are using Yahoo! mail or similar which don't offer an easy way to encrypt mail.

Re:Difference between phone & email (4, Insightful)

meta-monkey (321000) | more than 7 years ago | (#17316806)

Why more people don't use encrypted email boggles my mind.

Probably because it requires every person you send email to or receive email from to be aware of the encryption system and how to use it, and most users of email are technically illiterate? I, for one, don't want to have to try to teach my parents how to use PGP so the government won't find out I'm planning to arrive for Christmas dinner at 2PM.

Re:Difference between phone & email (1, Informative)

Anonymous Coward | more than 7 years ago | (#17316946)

I, for one, don't want to have to try to teach my parents how to use PGP so the government won't find out I'm planning to arrive for Christmas dinner at 2PM.


If you really don't want the government to know, you have many options

  1. Phone, where lots of legislation will protect your call unless they have a warrant or your're the target of a warrentless tap.
  2. Skype, where the communication is encrypted and so protected unless the government goes to skype/ebay with a warrant.
  3. Physical mail, where there are laws protecting you, and it's kinda hard to read without the tampering being detected.
  4. Nothing to hide -- if you're not expecially interesting to the government, noone will bother to read when you showed up at Christmas, so email is perfectly fine. The practical matter is that though your email probably ends up in archives and databases at the NSA (if your ISP is AT&T = http://www.wired.com/news/technology/0,70619-0.htm l [wired.com] ) noone will ever see it if your life is boring enough.

Re:What part of (1)

AdamKG (1004604) | more than 7 years ago | (#17316332)

Any message sent across it unencrypted is just as much fair game for prosecutuion as taking a picture of you mooning other cars on the freeway.
I deny everything.

Re:What part of (1)

Joebert (946227) | more than 7 years ago | (#17316730)

Then an undercover female officer takes a picture of the tattoo on your ass while she has you handcuffed to the bed, then you're fucked, but not the way you'ld like to be.

Re:What part of (1)

LOTHAR, of the Hill (14645) | more than 7 years ago | (#17316342)

The question can be considered from

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, "

Can emails you send be considered your "effects"? It's a good question.

Re:What part of (3, Insightful)

Marxist Hacker 42 (638312) | more than 7 years ago | (#17316586)

Can emails you send be considered your "effects"? It's a good question.

I'd say NO- for the very reason put forth by the Feds. Once you send it out, that copy of the data belongs to the ISP, not you. No different than committing a crime in front of the local police station when you get right down to it.

Re:What part of (0)

Anonymous Coward | more than 7 years ago | (#17316672)

I have to have a dissenting opinion. E-mail's are not part of you effects becasue they are already covered as part of your papers, even if they are not physical printings.

Re:What part of (2, Insightful)

Marxist Hacker 42 (638312) | more than 7 years ago | (#17316766)

Yep- and just as a paper you nail to the telephone pole down the street becomes a part of the public sphere and no longer your property, so too is it with e-mail when you hit SEND. I like your analogy- you just didn't take it far enough.

Re:What part of (1)

spun (1352) | more than 7 years ago | (#17316790)

So if I send a work I've copyrighted through email, the ISP owns it? Damn! Should the Fed have the right to open your snail mail, too? What's the difference? Even when in public, I have a right to reasonable privacy. For instance, it's illegal to take pictures up someone's skirt. UP their skirt, you know, from ground level? If someone happens to be leaving a car and wearing no undies, that's different.

You seem to be making up legal precedent to suit your argument. The internet is not "the public domain." How is it different than phone lines? I mean, your phone conversation passes through many different telcos and any of them could easily listen to your conversations, but this is illegal. How is the Internet different? Don't ISPs have common carrier status, and doesn't that preclude them from monitoring your communications? And doesn't the government have to play by different rules ayway? In the US, our government is bound by the Constitution which precludes them from doing certain things that a company could do.

In short, your argument makes no sense It almost seems as if you are being contrary just to be contrary. I can say that black is no different than white, but that won't make it so any more than your claims about our legal and governmental systems make them true.

Re:What part of (5, Insightful)

Marxist Hacker 42 (638312) | more than 7 years ago | (#17316952)

So if I send a work I've copyrighted through email, the ISP owns it?

They own that copy- which you as the copyright owner freely gave them by ASKING THEIR E-MAIL SERVER TO MAKE A COPY!

Damn! Should the Fed have the right to open your snail mail, too?

They did with US Mail before they passed a bunch of laws making it illegal. They still have the right to open snail mail sent through FedEx, UPS, or a half dozen other private carriers.

What's the difference?

The difference is that the laws haven't been passed to make snooping on e-mail illegal. Or for that matter, UPS and FedEx packets.

Even when in public, I have a right to reasonable privacy.

Not by the Supreme Court, who ruled that you have NO reasonable expectation of privacy in the public sphere.

For instance, it's illegal to take pictures up someone's skirt. UP their skirt, you know, from ground level? If someone happens to be leaving a car and wearing no undies, that's different.

Yes, but that's a different special exception law- like the special exception of privacy in the US Mail. No such law has been passed for the Internet yet.

You seem to be making up legal precedent to suit your argument. The internet is not "the public domain." How is it different than phone lines?

The laws haven't been passed to make ISPs common carriers yet.

I mean, your phone conversation passes through many different telcos and any of them could easily listen to your conversations, but this is illegal.

Yes, but once again, special exception laws had to be passed to create that expectation of privacy in the public sphere.

How is the Internet different?

There aren't any laws creating privacy there yet.

Don't ISPs have common carrier status, and doesn't that preclude them from monitoring your communications?

No, ISPs do NOT have common carrier status- and they can do whatever the hell they want to as far as monitoring your communications are concerned.

And doesn't the government have to play by different rules anyway?

Yes, to a certain extent- but you can't smoke a joint in front of a policeman and expect not to get arrested either.

In the US, our government is bound by the Constitution which precludes them from doing certain things that a company could do.

True, but this isn't one of them, because the Internet wasn't created at the time the Constitution was. Neither were phones or the US Mail service- which is why special laws had to be passed by Congress to create privacy in that portion of the public sphere.

In short, your argument makes no sense It almost seems as if you are being contrary just to be contrary. I can say that black is no different than white, but that won't make it so any more than your claims about our legal and governmental systems make them true.

And claiming common carrier status for ISPs when no such law has been passed is just plain stupid.

Re:What part of (1)

pluther (647209) | more than 7 years ago | (#17316908)

Once you send it out, that copy of the data belongs to the ISP, not you. No different than committing a crime in front of the local police station when you get right down to it.

Sure it's different.

By your reasoning, any letter you send is property of the Post Office, therefore they have the right to read it without a warrant.

And any phone call you make is property of the phone company, therefore they have the right to listen in to it without a warrant.

While both of these have certainly been done (and not just by Bush and Friends), there is significant dispute over their legality, even after the outgoing congress passed a special new law to legalize ongoing activity.

So is any encrypted message. (1, Interesting)

FatSean (18753) | more than 7 years ago | (#17316386)

I do believe the government can jail you indefinately if you won't turn over the keys. Hopefully they can't declare you an Enemy Combatant who can be dissapeared forever...but I'm sure Lil'Bush and Company are trying their darndest!

Re:So is any encrypted message. (2, Interesting)

mark-t (151149) | more than 7 years ago | (#17316728)

And what if you say you don't have the keys and you don't have any clue what the thing is about?

Seems that a really good way of getting someone you don't like incarcerated... send them some email (with a faked email return header, of course) that contains an encrypted message with no indication of how to decrypt it, but incriminating evidence within the email that its contents contain an illegal conspiracy.

Ultimately, if the person says they don't have the keys, the government would have to take them at their word or the above scenario would definitely occur.

Re:So is any encrypted message. (1)

snark42 (816532) | more than 7 years ago | (#17316892)

Maybe if you live in the UK. But what if you really forgot? or the HD with the public key is destroyed (that message is on the server, right.)

Re:What part of (4, Informative)

mattmacf (901678) | more than 7 years ago | (#17316402)

This has nothing to do with Public Domain and everything to do with WHO has the expectation of privacy.

An analogy if you will. Suppose you and I commit a crime, the evidence of which is stashed at your house. The police come busting down your door without a warrant and find said evidence. In this case, your right to privacy has been violated and the evidence found cannot be used against you. However, this evidence can still be used against me. Why? Because I had no expectation of privacy IN YOUR HOUSE. As far as the law is concerned, the evidence found against me is as legitimate as if you had turned it in yourself.

Back to the email thing, the minute you send an email to an outside party, you voluntarily concede your expectation of privacy as YOU were the one who freely divulged whatever information was in that email.

Re:What part of (3, Interesting)

vertinox (846076) | more than 7 years ago | (#17316870)

In this case, your right to privacy has been violated and the evidence found cannot be used against you. However, this evidence can still be used against me. Why?

IANAL, but something about this tells me that a decent lawyer could find something to get this evidence dismissed against both parties due to improper police handling of evidence.

The better analogy would be that you rent out storage space at the local long term storage places and store your evidence there.

The police come and ask the storage space owner to search your space. Your a customer of his, but chances are the storage owner doesn't care enough about you to demand a warrant so it is a moot point whether they have it or not and grants them permission.

However, the key question is here does that rented space count as requiring a warrant since it is indirectly leased to you.

For some reason (someone correct me if I'm wrong about this) but as far as I know search warrants are still required for apartments for the residents even if the landlord agrees and gives the police a key to get in.

This is one of the reasons Landlords must give 24 hour notice before they enter the apartment etc.

The key question here if your email space on the server is considered "lease property" and technically owned by the persons paying for the space.

Re:What part of (1)

manifoldronin (827401) | more than 7 years ago | (#17316410)

Any message sent across it unencrypted is just as much fair game for prosecutuion as taking a picture of you mooning other cars on the freeway.
No, reading a server log entry indicating I sent you an email would be like taking a picture of you mooning other cars on the freeway.

What moron modded you "insightful"? (3, Insightful)

mmell (832646) | more than 7 years ago | (#17316520)

Your assertion is not unlike suggesting that I have no expectation of privacy in postal mail because for a length of time it was in the posession of a Federal agency, the US Post Office.

Re:What moron modded you "insightful"? (2, Informative)

Marxist Hacker 42 (638312) | more than 7 years ago | (#17316734)

Your assertion is not unlike suggesting that I have no expectation of privacy in postal mail because for a length of time it was in the posession of a Federal agency, the US Post Office.

And that would be completely correct if it wasn't for a set of special laws protecting the US Post Office- that same set of laws has NOT been passed for the Internet. If you want them- you need to write your congress critter.

I apologize. (1)

mmell (832646) | more than 7 years ago | (#17316798)

I thought your post was suggesting that you feel this is right; I see now that you are merely asserting that this is how it is.

Sorry 'bout that, Chief!

Re:What part of (2, Informative)

Qzukk (229616) | more than 7 years ago | (#17316746)

It's not the "public" domain anyway, it's in the possession of Earthlink, AT&T, or whoever owns whatever particular machine it happens to be on at the time.

If the government is getting it off of one of these privately owned servers, then either the owner is giving it to them, or they had better have a search warrant for it.

Re:What part of (1)

Marxist Hacker 42 (638312) | more than 7 years ago | (#17316810)

Thank you for the first INTELIGENT post that actually pokes a hole in my argument. You're completely correct- to a certain extent. But since these are corporate entities rather than private individuals, they often play by a different set of rules- if it isn't forbidden by a policy in their charter or by your contract with them, you've got no reasonable expectation that they're not just going to hand it over to whomever asks for it.

And if encrypted? (0)

Anonymous Coward | more than 7 years ago | (#17316792)

Suppose they are encrypted. Then is the feds allowed to read them? Of course, if it is encrypted, AND the feds have broken the scheme, then you have just signaled what you think should be private. IOW, you just told them where the needle is in the monster haystack. So my question is, once you have set a policy for allowing the feds to come into your private systems, then why not your private house? Or your private bedroom? What is the difference? Offhand, I do not think that this admin really cares. And I would guess that future admins will care even less.

Right to read (4, Insightful)

laffer1 (701823) | more than 7 years ago | (#17316242)

This is more of a question rather than comment. Is it legal for them to read snail mail at the post office? Its stored there until you get it delivered. If no, then this lawsuit has a point.

Re:Right to read (4, Interesting)

Marxist Hacker 42 (638312) | more than 7 years ago | (#17316264)

The difference being that the US Mail has laws protecting it's privacy. FedEx, UPS, and your local mailserver simply don't. It's perfectly legal for them to snoop on a FedEx overnight envelope while it's stored at a FedEx warehouse or when it hits the central depository in Chicago.

Re:Right to read (3, Interesting)

balsy2001 (941953) | more than 7 years ago | (#17316824)

I think this is only if Fedex lets them. My guess is that Fedex etal will say you can't haveinformation on our clients without a warrant/subpoena. Otherwise why not just station a lay enforcement officer at all FEdex depot to search everything for potential criminal activity. On a kind of related note, several of my friends used to work at a UPS center during college and they said their instructions from the company in the event of accidental opening was to put it back in the box and ignore it even if it was weed or something.

What if... (2, Insightful)

BenSchuarmer (922752) | more than 7 years ago | (#17316356)

What if the mail in question is a post card?

It seems to me, that anyone who wants to keep their mail private, should put it in an appropriate container (aka encryption).

Re:Right to read (1)

BlaisePascal (50039) | more than 7 years ago | (#17316376)

It is not legal without a warrant for them to open a letter you send at the post office. I suppose they could read a postcard. But the post office is a branch of the Federal Government, and not tampering with the mail is covered by other Federal laws.

From reading the article, it states that the Feds are relying on a 1986 law that gives them permission to do what they are doing.

Re:Right to read (1)

timeOday (582209) | more than 7 years ago | (#17316422)

Is it legal for them to read snail mail at the post office?
Are you joking? I've woken up in the Soviet Union. No, the police cannot steam open your mail without a warrant. No, they cannot tap your phone without a warrant. (Until recently of course). Why we have given up on these principles and accepted universal wiretapping for newer technologies, I cannot imagine.

In Soviet Russia... (4, Insightful)

Kelson (129150) | more than 7 years ago | (#17316552)

I've woken up in the Soviet Union. No, the police cannot steam open your mail without a warrant. No, they cannot tap your phone without a warrant. (Until recently of course). Why we have given up on these principles and accepted universal wiretapping for newer technologies, I cannot imagine.

Kind of makes you wonder who really won the Cold War, doesn't it?

We've obviously been doing better than Russia and most or all of the other former Soviet republics, and capitalism clearly triumphed over communism, but when it comes to personal freedoms, we're doing to ourselves what we feared the Soviets would do to us. Did we really come out on top?

Re:In Soviet Russia... (2)

daveschroeder (516195) | more than 7 years ago | (#17316794)

We've obviously been doing better than Russia and most or all of the other former Soviet republics, and capitalism clearly triumphed over communism, but when it comes to personal freedoms, we're doing to ourselves what we feared the Soviets would do to us. Did we really come out on top?

Considering this law is the Stored Communications Act of 1986, and the Cold War wasn't even over yet then, yes, one does wonder.

...

Seriously, I know most people reading this will think this is some "new" law. No, what's "new" is that the already existing law is being *challenged*, or at least the interpretation of it.

So that's a good thing, right?

Or is it better to make it look like a 20-year old law represents some "slippery slope" that we're slipping downward into?

Re:In Soviet Russia... (1)

JavaLord (680960) | more than 7 years ago | (#17316804)

We've obviously been doing better than Russia and most or all of the other former Soviet republics, and capitalism clearly triumphed over communism, but when it comes to personal freedoms, we're doing to ourselves what we feared the Soviets would do to us. Did we really come out on top?

Maybe you haven't been paying attention to what goes on in Russia lately, but you should look into the stories of Alexander Litvinenko [wikipedia.org] , Anna Politkovskaya [wikipedia.org] , Paul Klebnikov [wikipedia.org] , Artyom Borovik [wikipedia.org] and a few others.

You don't see things like that happening over here. When Keith Oberman is gunned down for criticizing the government, then you can start comparing America to modern day Russia. Americans today don't face anywhere near the type of oppression that people did in Soviet Russia. While outlandish statements like that may earn you mod points here on slashdot, or replies on other fourms, they don't add to meaningful discussion.

A better question in my opinion would be, what would our founding fathers think of such government actions if they were alive today?

Re:In Soviet Russia... (1)

meta-monkey (321000) | more than 7 years ago | (#17316926)

Oh, please. How's life in the gulag there, comrade? Oh, what's that? The FBI didn't bust down your door for not liking George W. Bush? Imagine that!

You might be overreacting just a touch. Godwin's Law should cover mentioning the Soviets, too.

Re:In Soviet Russia... (1)

pluther (647209) | more than 7 years ago | (#17316968)

...when it comes to personal freedoms, we're doing to ourselves what we feared the Soviets would do to us.

It's all part of the War on Terror, you know.

Why do the terrorists attack us? It's because they Hate Our Freedom.

Get rid of that, and we'll be rid of terrorism.

Because, "BOOOO!" (0)

Anonymous Coward | more than 7 years ago | (#17316830)

Why we have given up on these principles and accepted universal wiretapping for newer technologies, I cannot imagine.

Dagnabbit you dang fule! They's terrists with atum bombs hidin' in ever coner of thuh cornfield and they's out to git us cuz they hates are freedumb! Thank Jay-sus the gubbermin' is are frend 'n' pertecter. What er yoo, sum kinda weerd commie librul hippy?!

Re:Right to read (1)

BigBuckHunter (722855) | more than 7 years ago | (#17316482)

More like, is it legal to get a court order to tell Mailboxes etc to give the police accesses to someone elses privately (Ups/Fedex) delivered parcel at Mailboxes etc?
 
I believe the answer is... Yes! I thought that this is something that was known and accepted for the last bajillion years? I remeber working at a BBS in the 90's. The police called and said that they were investigating one of our susbscribers and wanted his e-mail. I asked the boss, and he said "sure". No court order, no warrnt, we just gave it to them. It was a privately owned business, and the owner said, "sure".
 
BBH
Note to the spelling police, I'm on an iMac keyboard.

Re:Right to read (1)

zaliph (939896) | more than 7 years ago | (#17316578)

Ahem.

"The privacy and security of mail are core values of the Postal Service. Information from the contents or cover of any customer's mail may not be recorded, photocopied, filed, or otherwise collected or disclosed within or outside the Postal Service, except for Postal Service operations and law enforcement purposes as specified in 39 Code of Federal Regulations (CFR) 233.3 and Chapter 2 of the Administrative Support Manual."
http://www.usps.com/cpim/ftp/hand/as353/a353c2_002 .html#vnameref_1 [usps.com]

Which leaves a lot open to interpretation.

E-mail is not normal mail. (0)

Anonymous Coward | more than 7 years ago | (#17316712)

It is information sent across a public internetwork for every gateway and SMTP server in between to see. Making reading others's E-mail illegal is like making listening to a conversation using megaphones illegal.

Re:Right to read (1)

ArcherB (796902) | more than 7 years ago | (#17316736)

This is more of a question rather than comment. Is it legal for them to read snail mail at the post office? Its stored there until you get it delivered. If no, then this lawsuit has a point.

I think the question is more like:
If the Feds get a warrant to search a home, and in that home they found a snail mail letter from you, do they have the right to read it?

While we all agree that letters can not be opened at the post office (unless it's leaking white powder or something), does YOUR privacy carry over to the letter that is in SOMEONE ELSE'S hands, someone who can legitimately be searched?

Violating the SPIRIT of the law (0)

Anonymous Coward | more than 7 years ago | (#17316802)

I think it's fairly obvious what the existing law intends to protect. What the prosecutor did is within the letter of the law, but is in violation of its spirit.

Your Grandma (0, Offtopic)

spribyl (175893) | more than 7 years ago | (#17316260)

For those that don't already know this your grandmother reads your e-mail.
Plan accordingly.

Liability (2, Insightful)

omeomi (675045) | more than 7 years ago | (#17316262)

I wonder if it's possible to (successfully) sue whatever private entity gave up your email information (i.e. the "someone else's computer")...Seems like the government should be forced to get a warrant even for your email stored at your ISP...otherwise, your ISP should be liable for not protecting your personal information.

Hearsay Evidence? (3, Informative)

wiz31337 (154231) | more than 7 years ago | (#17316270)

Even if your e-mail is stored on another individual's computer seized under a search warrant, the government cannot use this information as evidence.

According to the Federal Search and Seizure Manual written by the Department of Justice:


See United States v. Upham,168 F.3d 532, 535 (1st Cir. 1999). First, the warrant must describe the things to be seized with sufficiently precise language so that it tells the officers how to separate the items properly subject to seizure from irrelevant items. See Marron v. United States, 275 U.S. 192, 296 (1925) ("As to what is to be taken, nothing is left to the discretion of the officer executing the warrant."); Davis v. Gracey, 111 F.3d 1472, 1478 (10th Cir. 1997). Second, the description of the things to be seized must not be so broad that it encompasses items that should not be seized. See Upham, 168 F.3d at 535. Put another way, the description in the warrant of the things to be seized should be limited to the scope of the probable cause established in the warrant. See In re Grand Jury
Investigation Concerning Solid State Devices, 130 F.3d 853, 857 (9th Cir. 1997). Considered together, the elements forbid agents from obtaining "general warrants" and instead require agents to conduct narrow seizures that attempt to "minimize[] unwarranted intrusions upon privacy." Andresen v. Maryland, 427 U.S. 463, 482 n.11 (1976).


Even if found by coincidence the "natural male enhancement" e-mails would not be admissible in a court of law, they would be considered hearsay.

Re:Hearsay Evidence? (1)

brunascle (994197) | more than 7 years ago | (#17316480)

Even if found by coincidence the "natural male enhancement" e-mails would not be admissible in a court of law, they would be considered hearsay.
that's good, since the "evidence" could easily be forged.

Re:Hearsay Evidence? (2, Informative)

GodInHell (258915) | more than 7 years ago | (#17316488)

Your citation is irrelevant.

The government's argument is that no warrant is necessary since your documents are stored in the open. The ISPs hand over the data willingly.

Thus, all that is necessary is to maintain the chain of evidence such that it is clear who wrote it, who recieved it, and who touched it between sending and its appearance in court.

-GiH

Re:Hearsay Evidence? (1)

wiz31337 (154231) | more than 7 years ago | (#17316902)

My citation is perfectly relevant, if you would read my post a little closer you would notice that I said "another individual's computer" not an ISP.

I was making the point that if I sent an e-mail to my friend about something racy, and his house was stormed by the RIAA for having illegally downloaded Paris Hilton's new album, they would not have the right to my e-mail as evidence in a case against me.

I neglected to mention what I was getting at... This should be no different with ISPs.

Re:Hearsay Evidence? (1)

bourne (539955) | more than 7 years ago | (#17316674)

Yeah, but...

Read the article carefully. The ISP has the right to read the email, and pass it along to law enforcement.

USC 18, 2511(2)(a)(i):

It shall not be unlawful under this chapter for an operator of a switchboard, or an officer, employee, or agent of a provider of wire or electronic communication service, whose facilities are used in the transmission of a wire or electronic communication, to intercept, disclose, or use that communication in the normal course of his employment while engaged in any activity which is a necessary incident to the rendition of his service or to the protection of the rights or property of the provider of that service, except that a provider of wire communication service to the public shall not utilize service observing or random monitoring except for mechanical or service quality control checks.

Translation: If dork-o sends three billion copies of his spam through your ISP, he is going to impact your service. You are then justified, as a system administrator, to view those messages as investigation in the course of "protection of the rights or propterty of the provider of that service" - it is one of the exceptions under which wiretap is allowed. Once you've added up enough costs to interest the appropriate government resource,you call them in, provide them with the information that they couldn't get without a warrant - but you could! - and they're off to the races.

Re:Hearsay Evidence? (1)

Otterley (29945) | more than 7 years ago | (#17316680)

You misunderstand the concept of hearsay in evidence law. Hearsay is cause for exclusion of a statement introduced for the purpose of proving the truth of the matter asserted in the statement. (i.e., it would be excluded if the issue was whether the pills really did provide "male enhancement"). However, to introduce the email for the purpose of showing that it violated a law relating to UCE would not violate any evidence rule.

E-mail as court evidence (2, Interesting)

westlake (615356) | more than 7 years ago | (#17316782)

Even if your e-mail is stored on another individual's computer seized under a search warrant, the government cannot use this information as evidence.

From the U.K., but short and to the point:

Email content is treated in the same way as verbal and written expressions and statements and is admissible in a court of law. It is a common misconception that email messages carry less weight than letters on headed notepaper.

The problems are only likely to arise if your opponent disputes the authenticity of what you produce. The same applies to traditional letters - i.e. it is only when their authenticity is questioned that proof becomes a problem.

If the authenticity of an email produced in court is questioned, be prepared to provide evidence of the audit trail showing where the email originated and the route by which it was sent to your computer. The audit trail would show if there had been any opportunity for someone to interfere with the email as they are usually sent between several servers before they reach their destination.

Email have raised problems for the courts. In the past, evidence would invariably take the form of an original signed document and if that was not available then a copy of that signed document could be substituted. The signature would be the key to proving the authenticity of the document (of course, the argument can still be made that the signature is a fake). The difference with email is that there is no such thing as an 'original' since the print-out is the end result of a technological process. It is the audit trail showing that process which can be used to persuade the court of the print-out's authenticity if this is challenged by your opponent.

Forensic computing services can help if it becomes necessary to prove that a hard copy of an email produced in court is genuine.

Email as court evidence [out-law.com]

Specific instance of a general problem (4, Insightful)

Jerf (17166) | more than 7 years ago | (#17316312)

This is just a specific instantiation of a general problem with computers.

With old-style non-electronic messages, there is no distinction between the contents of the letter and the physical letter itself. Hundreds of years of laws and general ethical principles were written based on the assumption this will always be true. Now it's not, and it's all breaking down, but most people don't even notice this is the root of the problem because the assumption is so deeply ingrained. Instead, they want to just hack around the problem, not noticing you really need to rethink the whole system.

Copyright has the exact same problem [jerf.org] .

The internet privacy advocates mentioned in the article, which the general /. populace will probably view with more sympathy than the government, by claiming that email should be treated just like physical mail are really committing the same error as the government, who are basically acting as if they do have a place where they could grab a physical letter and therefore they can, just as if it were physically sitting somewhere.

The reality is that we need to sit down and really re-think the entire situation. The old model is broken.

Right to Read (1)

Ice Wewe (936718) | more than 7 years ago | (#17316330)

"Federal prosecutors say they don't need a search warrant to read your e-mail messages if those messages happen to be stored in someone else's computer."

So, does this rule also apply to remote servers? I know that Google claims that their bot only scans your email to target ads at the web-interface. But, one wonders, are they collecting more? What if the mail server is in a different country, would it be under different jurisdiction? For example:

I live in Canada, however I have a GMail account. So, if someone was onto me in the US, would they have to go through the Canadian legal system to gain access to my mail, or would they just show up at the Google server farm, and take the hard-drive with my mail on it?

When was this bill passed into law anyway? It seems like a major invasion of privacy.

Catch 22... (3, Insightful)

the_skywise (189793) | more than 7 years ago | (#17316354)

"E-mail providers also routinely screen messages for spam, viruses and child pornography. That further undermines claims to the privacy of e-mail, government attorneys say."

Good point here. If you're allowing a company to snoop your email for spam/viruses then you're already negating the privacy issue. If the judges decide that privacy wins out then the spam companies can sue to say that the big ISP's have no right to snoop their mail for spam before reaching your computer.

On the one side you've got the phone-call analogy (where the government can't eavesdrop on your phone calls even though they go through a public system) and on the other you've got the photo developing places which can turn over photos to the government if they deem something they see is illegal.

Definitely an interesting case.

Re:Catch 22... (1)

Deadplant (212273) | more than 7 years ago | (#17316854)

I don't buy that one.
I pay an agency to come and clean my house, the women they send has keys, she comes and goes while I'm at work.
That's an arrangement I made with her. Is that supposed to mean that federal agents may now come and search my house any time they want without a warrant?
I gave up my privacy to google so they can perform specific tasks for me. (specifically, cleaning my email) I don't see the logical reasoning that leads from that to granting the FBI access to my email.

Re:Catch 22... (1)

UbuntuDupe (970646) | more than 7 years ago | (#17316914)

I don't know how bad this analogy is, but ...

Good point here. If you're allowing a company to snoop your email for spam/viruses then you're already negating the privacy issue.

The Post Office checks for dangerous characteristics of packages (smell, leading, powdery residue, someone pounding on inside demanding that you let him out) without opening them. The ISP checks for dangerous characteristics without any human actually reading the content.

Re:Catch 22... (0)

Anonymous Coward | more than 7 years ago | (#17316944)

Well that's where you are wrong.
I hav a secretary inmy office. She takes my calls because I asked her to do so. Once I have the call she is not allowed to bud in.
Same here. I have asked my ISP to use automatic means (Meaning not a person) to filter my e-mail and tag it. It would be a gross violation of my privacy if even my ISP (as in employees) read my email. Since I only allowed for automated screening (as in computer programs).

Where the Feds got the notion, that that opens any leeway for search and seizure is puzzling. I think its high time a judge stepped on some federal toes and reminded them what made this country great. It wasn't the FBI or searches without warrants. It was the Declaration of Independance claiming all to bve equal, constitution setting bounds for what Government can do, the Bill of Rights specifying some major unalienable rights, Miranda vs. US stating that the government has a duty to inform people of their right... It was the freedom not the security that made the United States the greates country on earth.
And it is security (or the pretense thereof) and not freedom that will be its downfall.

One word.. (2, Informative)

slummy (887268) | more than 7 years ago | (#17316374)

Encryption. The apathetic always ask me, "Why encrypt your email/files?". This article is my answer to them.

Re:One word.. (1)

Archangel Michael (180766) | more than 7 years ago | (#17316700)

I'm sure their standard response is ... "I've got nothing to hide". They don't realize that at this moment, something in their email is innocuous, but that same something under another circumstance is not. That joke you sent two days ago about Jewish Holidays and religious practices is innocent until the proper hate crimes are applied to it, but only if you aren't jewish. Same thing with the "N" word, which is taboo unless you are of the proper skin pigmentation group.

Also, as a complete aside ...

Let me get this straight, people want to "enlarge" certain anatomical parts, so that they can be "seen" as being more impressive (see "Smiling Bob" commercial), but don't want people to know about their email containing products to supposedly accomplish said effect. Strange

Interesting thing (4, Interesting)

gillbates (106458) | more than 7 years ago | (#17316400)

So, if I understand this right: The executive branch believes it has a right to read our email, because we have no "Constitutional" expectation of privacy, but the White House can refuse to turn over emails to Congress, because, alas, email is private?

So, I guess the Constitution gets interpreted differently when the subject of an investigation is the President. Hmmm....

Re:Interesting thing (1)

east coast (590680) | more than 7 years ago | (#17316632)

Not knowing the exact incident you're talking about I think the article does a somewhat shoddy job of describing what exactly is legal.

IANAL but my take on this is that if there is a search warrant on your PC for child pr0n that I would not have to be served a warrant as well if I sent you the files in question and that these same files that are being used against you as evidence would also be evidence that could be used against me as the sender.

Furthermore I'm reading it as if I had child pr0n in my GMail account a warrant could be served against Google to get evidence from my GMail account without having to serve a warrant to me. This seems to me that they are basically saying that the mail itself is the property of GMail and not mine. This brings up the question of; can I refuse to honor their request to see my e-mail if it's handled on a third party server (Google in the case of GMail) since I do not technically have ownership of this mail? Do I even have the ability to show them this e-mail since the warrant would only cover my own property?

I don't think there is any real question of legality in my first scenario under today's law but the second one may be more questionable under current law.

Again, IANAL and most of this should be taken as a question more than an answer as to what is currently legal and illegal involving e-mail seizure.

Re:Interesting thing (0, Offtopic)

Cheapy (809643) | more than 7 years ago | (#17316636)

Are you claiming that the President has ever done anything wrong in his 6 glorious years at the White House?

You must be a terrorist!

If your email is on my server (1)

wiredog (43288) | more than 7 years ago | (#17316678)

Then I can do with it what I want. Including give it to someone else.

Privacy and email (1)

jhines (82154) | more than 7 years ago | (#17316434)

If you want privacy on email, that is what port 25 is for, and the sender can exchange email directly to the receipent.

When the email hits a third party server, it is just data to them, and they can do what they want with it, subject to whatever agreement you have. So unless you signed a deal with them (IE your ISP) there is nothing special about it.

As long as the authorities got proper warrants to serve the third party for their data, they get it.

Re:Privacy and email (1)

sparcnut (775902) | more than 7 years ago | (#17316862)

If you want privacy on email, that is what port 25 is for, and the sender can exchange email directly to the recipient.
Since many (most?) ISPs block outgoing and/or incoming port 25 to any host other than their own mailservers, this is not a valid option.

Precedent? (1)

JimXugle (921609) | more than 7 years ago | (#17316446)

How about we take precedent from the USPS?

Unencrypted email is like a post card.
Encrypted email is like a letter.
When you leave a post card in your house, it's yours and the government needs a search warrant to read it, ditto with letters.
When you leave a post card in someone else's house, it's still yours, but the government needs a search warrant to search the other person's house to get it, ditto with letters.
Anybody in the USPS can read your post cards, however it is illegal to open letters.

Therefore, the best way to keep your email secure (in the legal way and the technical way) is to encrypt it and store it on someone else's computer.

Re:Precedent? (1)

forgotten_my_nick (802929) | more than 7 years ago | (#17316888)

> herefore, the best way to keep your email secure
> (in the legal way and the technical way) is to
> encrypt it and store it on someone else's computer.

As long as that persons machine isn't a laptop and they try to bring it through US customs.

In Other News (3, Funny)

Aqua_boy17 (962670) | more than 7 years ago | (#17316456)

I just read that the President wants to increase the size of the military in Iraq. Maybe someone should tell him about this "natural male enhancement" so we can use it there?

All email is stored on someone elses computer! (1)

deaton (616663) | more than 7 years ago | (#17316516)

Federal prosecutors say they don't need a search warrant to read your e-mail messages if those messages happen to be stored in someone else's computer.
My ISP doesn't allow me to run my own mail server, so all my email gets stored on their computers. Additionally, the email resides (at least temporarily) on both the sender's and receiver's computer. One of which is likely to be someone elses computer, if we're not talking about intra-organizational email.

Sure I am guilty... (0)

Anonymous Coward | more than 7 years ago | (#17316542)

The mentality that has arisen, one of guilt taking a back seat to the method by which you are found guilty, has taken some seriously odd turns. In this case, the actual information indicating that this guy is guilty seems to hold no importance with the court, or the people.

I will probably never fully understand how the actual information used to initiate the prosecution is swept under the carpet in favor of focusing on the method by which it was gathered. And lets keep in mind that at the time of the gathering of information, the process used was completely legal.

Let us assume for one crazy second that this joker actually wins... will he then be presumed innocent even though the accuracy of the information in question was never challenged? In my mind this equates to the police finding a chopped up body in someone's living room, and having the case thrown out of court because they only got a little permission to search, not a full search warrant. I don't pretend to know the minutia that makes up our legal system, so I encourage someone to set me straight.

Re:Sure I am guilty... (5, Interesting)

Mathonwy (160184) | more than 7 years ago | (#17316940)

Are you kidding? The method by which the information was gathered is INCREDIBLY important to a case. It has to be. Some brief examples of why:

Judge: "Very compelling evidence here. How did you come by it?"
Sherrif: "Me and the boys made it up. It seemed like the sort of thing he would do."

Judge: "Very compelling evidence here. How did you come by it?"
Sherrif: "One of our men went undercover and pretended to be his friend. He wasn't originally planning on doing it, but after our guy kept encouraging him, he managed to convince him to consider it. Then we nabbed him!"

Judge: "Very compelling evidence here. How did you come by it?"
Sherrif: "We broke down his door, surprising him in the act."
Judge: "Very fortunate! How did you know it was him?"
Sherrif: "Oh, we didn't. We just went down the line and kicked in all the doors on all the houses on the street until we found someone doing something guilty."

Judge: "Very compelling evidence here. How did you come by it?"
Sherrif: "We just held his head underwater until he thought he was drowning. We did it enough times, and he confessed to everything. He didn't even read the confession we prepared for him! He was just that eager to sign. Must have had a guilty concience or something."
[optional ending]
Judge: "Very fortunate! How did you know it was him?"
Sherrif: "Oh, we didn't. We just started torturing people. Eventually they always confess to SOMETHING..."

So let's review. In example #1, it matters how they got the evidence, since it matters that it actually be, you know, EVIDENCE. #2 is what is called "entrapment", and is kind of a manufactured guilt. (i. e. they woudn't have been guilty of anything except that an undercover officer went and tried to convince them to do something illegal.) #3 is an example of where [possibly] justice was done to one person, at the expense of the justice of everyone else. (How would you like to have your door kicked in some day by police, who then say "ok, you're clean. Just checking!" Would the knowledge that they MIGHT catch someone that way be enough to offset your outrage at having your privacy invaded and your posessions broken?) And finally, #4 kind of speaks for itself. (I hope.)

So yeah. The reason that there is a mindset that "how the evidence is gained matters as much as the guilt" is because it kinda does. Or how about this: Think of it from a logic perspective - Your proofs are only as strong as the axioms they are based on. Legal judgements only have as much justice as the evidence they are based on. So before handing out judgements, it's INCREDIBLY IMPORTANT to make sure that the evidence is all on the up-and-up. You are probably thinking of cases where "well, everyone knew he did it, who cares how they proved it? If he walks, it's on a technicality", but YOU CAN'T CONVICT SOMEONE BASED ON "everyone knows they did it." And you SHOULDN'T be able to. (That way leads to mob-rule.)

How I Learned to Stop Worrying... (1)

jac_at_nac (996340) | more than 7 years ago | (#17316556)

...and Love Email Encryption.

Re:How I Learned to Stop Worrying... (1)

bilbravo (763359) | more than 7 years ago | (#17316718)

Ok, everyone is going on about encrypting their e-mail, but I don't get it... so I'm about to willingly show my ignorance:

If I encrypt MY e-mail with whatever, I assume PGP, then send it to someone, they have to have a key to decrypt it. Does that mean everyone I know has to have my key and the knowledge/ability to decrypt the message? Also, can I do this with any e-mail? (i.e. webmail? or only Pop3? Only Exchange, only IMAP?)

Someone please explain.

Re:How I Learned to Stop Worrying... (3, Informative)

Qzukk (229616) | more than 7 years ago | (#17316866)

Yes. It means that you and everyone you know are going to have to read the instructions on your mail client on how to encrypt and decrypt your mail. You can do it on any client that supports it, though most webmail clients do not directly (though you could write the email in a text editor, encrypt that, and attach the file to an email). You will all have to meet in order to exchange public keys securely and keep your private keys safe.

Re:How I Learned to Stop Worrying... (1)

BradleyUffner (103496) | more than 7 years ago | (#17316882)

look up public key cryptography. It basicly works using a pair of keys. things encrypted with one key can can only be decrypted with the other key.

So i want to send a message to you. I lookup your public key, encrypt using it. only someone with the private key can read it, which should only be you.

"Government Has a Right to Read Your Email?" (1, Insightful)

AK Marc (707885) | more than 7 years ago | (#17316594)

I read the sensationalist title, and I read the summary, and I read the article. From that, there is no one disputing the governent having the right to read your email. The title is implying that the government is reading people's emails without cause. Regardless of whether that is the case, that is not related to what is happening here. The only question is what level of paperwork the government must go through.

During the investigation, agents obtained court orders allowing them to collect thousands of Warshak's e-mails from Yahoo and another e-mail provider. A court order requires a lesser burden of proof than a search warrant.

Everyone is in 100% agreement that with a search warrant, the government may obtain the emails in question. So, the answer to the useless title is "Yes, everyone involved in this case agrees that the government may read your emails." But an accurate title wouldn't have been as sensationalist. I guess generating page views is much more important than actually being descriptive. I don't mind whoring for page views. That's the nature of the Internet. I do object to lies and misleading statements designed to generate page views. I think that Slashdot has gotten to the point where the paid editors are supposed to post dupes, bad grammar, wrong titles, and such in order to bring out the people that complain about them (unfortunately, I'm in that group).

Let me see if I've got this right (2, Insightful)

rewt66 (738525) | more than 7 years ago | (#17316598)

Some sleazebag spammer sends me spam. I complain to the authorities. Said authorities decide that the spammer is breaking the law (fraud, spam laws, whatever). And the spammer says that the e-mails can't be used as evidence against him, because it's his private communication? That's the craziest legal theory I've heard since SCO.

You send your trash to me, I'll let the feds take it as evidence, gladly. You send several million of your trash to Yahoo, Google, and Hotmail, and they probably feel the same.

Free clue to spammers: The feds aren't the ones invading our privacy here. You are.

Reasonable (1)

endianx (1006895) | more than 7 years ago | (#17316620)

But federal prosecutors say they don't need a search warrant to read your e-mail messages if those messages happen to be stored in someone else's computer.
That seems perfectly reasonable to me, assuming they do have a search warrant to look at that other person's computer.

Re:Reasonable (1)

DragonWriter (970822) | more than 7 years ago | (#17316738)

That seems perfectly reasonable to me, assuming they do have a search warrant to look at that other person's computer.


No, what they usually have is the consent of the other person, who doesn't care about your privacy. Additionally, there usually is no practical remedy if the person whose privacy is violated isn't the one that the evidence is used against, as the principal remedy for illegally seized evidence (exclusion at trial) can only be invoked by the person whose rights are violated. Evidenced seized in violation of someone else's rights won't be excluded.

Re:Reasonable (1)

endianx (1006895) | more than 7 years ago | (#17316938)

No, what they usually have is the consent of the other person, who doesn't care about your privacy.
The person I send mail to has the right to do whatever they want with it. So does my mail provider assuming they tell me their 'privacy policy' before hand. I guess where I would start to have an ethical problem would be if the mail provider of the person I sent the mail to released it to the government. I never agreed to their privacy policy.

Does the question of "right" matter? (1)

Sloppy (14984) | more than 7 years ago | (#17316740)

The question of whether or not they have the right to do that, may be somewhat interesting in some theoretical way. Go ahead and debate it, law students. But ultimately, it is irrelevant.

They have the capability. And it's not just the government -- lots of people have the capability. Your email can be easily intercepted and there's little you can do to prevent that, and furthermore, you're not going to know when it happens. Make it illegal, and it will still happen.

So, given the reality that is imposed upon you -- a reality that no legislation or court, no liberal or conservative party, will ever be able to even influence -- what are you going to do about it?

Let them read ciphertext. Debating the legality of plaintext intercepts is a waste of time.

Email should be protected. (1)

insomniac8400 (590226) | more than 7 years ago | (#17316842)

If it's not protected the same as mail in your home, that is not right. People shouldn't need to know how to run their own mail server to have their mail protected.

It was spam anyway! (1)

cashman73 (855518) | more than 7 years ago | (#17316906)

From the article: "Now that law, the Stored Communications Act of 1986, is being challenged in federal court in Ohio by Steven Warshak, a seller of "natural male enhancement" products who was indicted for mail fraud and money laundering after federal investigators sifted through thousands of his e-mails."

So, they guy sent out mass emails to more than recipient (probably millions), and he's complaining about lack of privacy. Heck, several people he sent the emails to probably work for some branch of the government! What a tool!

Hardly New (3, Informative)

Anonymous Coward | more than 7 years ago | (#17316934)

This is not the slightest bit new.

As a matter of black letter law, the 4th Amendment does not protect "what a person knowingly reveals to the public." (Katz) Previous cases have held that your garbage, your bank records, and even phone records may be obtained without a warrant, provided that they are obtained from the third parties with which you are dealing and not your home.

There is federal statutory law on email (though I don't recall the precise citation) that treats email as a hybrid between telephone conversations and documents. To read your email in real-time as it comes in, the government requires a warrant. If you leave it on your ISP's mail server for longer than some period of time (not sure how long, but it's something longer than an hour and less than a month), then the email is treated as a document and can be obtained like any other record.

Normally a warrant to search a house, tap a phone or intercept email requires probable cause. However, this requirement is different if "a substantial purpose" of the investigation is foreign intelligence surveillance. In that case the warrant can be obtained with something less than probable cause under FISA as modified by USA Patriot Act (though there are still pretty stringent requirements; the gov doesn't get carte blanc to snoop on anybody)

Long story short, if you don't want it read, don't leave it on somebody else's server and don't do anything that would convince a judge that you pose a threat to the country.

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