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2010-12-16 Home Front: Culture Wars

Good news - court rules email is protected by the Fourth Amendment

Today, the United States Court of Appeals for the Sixth Circuit ruled that the contents of the messages in an email inbox hosted on a provider's servers are protected by the Fourth Amendment, even though the messages are accessible to an email provider. As the court puts it, "[t]he government may not compel a commercial ISP to turn over the contents of a subscriber's emails without first obtaining a warrant based on probable cause."

This is a very big deal; it marks the first time a federal court of appeals has extended the Fourth Amendment to email with such care and detail. Orin Kerr calls the opinion, at least on his initial read, "quite persuasive" and "likely . . . influential," and I agree, but I'd go further: this is the opinion privacy activists and many legal scholars, myself included, have been waiting and calling for, for more than a decade. It may someday be seen as a watershed moment in the extension of our Constitutional rights to the Internet.

And it may have a more immediate impact on Capitol Hill, because in its ruling the Sixth Circuit also declares part of the Stored Communications Act (SCA) of the Electronic Communications Privacy Act unconstitutional. 18 U.S.C. 2703(b) allows the government to obtain email messages with less than a search warrant. This section has been targeted for amendment by the Digital Due Process coalition of companies, privacy groups, and academics (I have signed on) for precisely the reason now attacked by this opinion, because it allows warrantless government access to communications stored online. I am sure some congressional staffers are paying close attention to this opinion, and I hope it helps clear the way for an amendment to the SCA, to fix a now-declared unconstitutional law, if not during the lame duck session, then early in the next Congressional term.

Posted by DarthVader 2010-12-16 11:22|| || Front Page|| [5 views ] Top

#1 They can rifle through your email and you'd never know. What do they care, they'll give us this one.

Posted by gorb 2010-12-16 12:45|| 2010-12-16 12:45|| Front Page Top

#2 One of America's great intellectual tragedies is the idea that, "If a little is good, more is *necessarily* better". It is found across the political and cultural spectrum, and bears all the pitfalls found in the lack of true moderation.

Yes, it is interesting to watch a lack of moderation in practice. It is stimulating, and entertaining. But it should never for a moment be assumed to be better than even too little.

America has 16 major intelligence agencies, and more than 150 federal police agencies and organizations.

Why?

But even if there was just a CIA and an FBI, there is no need for them to conduct surveillance on every single person in the world, or every single person in the United States.

Yet they strive for this, preying on paranoia and fear that unless all are watched all the time, in a hundred different ways, with fat dossiers and data mining of databases, something *bad* *may* happen.

In itself, it becomes far worse than any external or internal threat. The policeman becomes the oppressive jailer, and the spy becomes the perverted voyeur.

Their ambitions are limitless. They seek to even monitor our bodies, and if there was some way, they would label, bar code and license our very souls. Because if they don't, they cry over and over again, something *bad* *may* happen.

They have become the bad. What they do is wrong and must cease. It is irrational and ineffective, claiming credit for the successes of far less invasive traditional policing and espionage.

And they always cry for more. More power, more money, more liberty to oppress and survey.

Years ago, someone of this mindset openly proclaimed that NASA should erect giant space mirrors, so that we would never again have to live in the concealment of darkness. They promised that by doing this, we would be able to work much harder, and have much more safety, because the *bad* could never again lurk in the shadows to menace us.

And this showed the real truth of such ideas. It is not us who are afraid of the natural darkness, but the few who are proponents of such schemes. They never outgrew their terror of the night, their dread of silence and stillness. The monster that lurks under their bed.

How sad for them. But it should be between them and their headshrinker, not forced on us all.

Posted by Anonymoose 2010-12-16 14:12|| 2010-12-16 14:12|| Front Page Top

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