Feds: 4th Amendment Shouldn't Apply To Online Emails Because... That Would Make Us Have To Work Harder

from the um...-that's-the-point,-isn't-it? dept

Ah, our ever-dwindling Fourth Amendment. The latest is that the Obama Administration has come out against a particular reform of ECPA (the Electronic Communications Privacy Act), the 25-year-old statute that governs online privacy issues, which almost anyone with any sort of technical knowledge admits is woefully outdated. For example, a key point is that any content stored on a server for more than 180 days is considered "abandoned," and thus the government does not need a warrant to access it. But, of course, these days, when many people leave all of their content on a remote server, that doesn't make much sense. So the effort underway is to reform and fix those problems.

But the Obama administration doesn't like that because it likes being able to access such content with ease and without the oversight of having to show probable cause in a warrant.
Congress should recognize the collateral consequences to criminal law enforcement and the national security of the United States if ECPA were to provide only one means -- a probable cause warrant -- for compelling disclosure of all stored content. For example, in order to obtain a search warrant for a particular e-mail account, law enforcement has to establish probable cause to believe that evidence will be found in that particular account. In some cases, this link can be hard to establish.
In other words, "the 4th Amendment makes life hard for us, so please let us ignore it." You see, the point of the 4th Amendment is that it's supposed to make the government's life hard. It's supposed to be hard work for law enforcement to prove that it needs to violate someone's privacy. It's supposed to be difficult, because the point of the 4th Amendment is to protect citizens from the government, not to make the government's job easy.


Reader Comments (rss)

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    senshikaze (profile), Apr 8th, 2011 @ 8:44am

    What if the server is in another country?
    If I was Amazon(or whatever) I would offer a "free from prying eyes" plan that hosts all data in a country that has no extradition treaty with America.
    Screw you, DC!

     

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    Michael, Apr 8th, 2011 @ 9:47am

    Really?

    "in order to obtain a search warrant for a particular e-mail account, law enforcement has to establish probable cause to believe that evidence will be found in that particular account. In some cases, this link can be hard to establish"

    How can anyone actually say that with a straight face?

     

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      Anonymous Coward, Apr 8th, 2011 @ 9:49am

      Re: Really?

      Because they don't care about the rights of the people who put them in power.

      All they care about is that power and the money that having that power gets them.

      Period.

       

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        Will Sizemore (profile), Apr 8th, 2011 @ 11:28am

        Re: Re: Really?

        AC#4 Hit this right on the nose. The individuals enforcing these policies don't care. They're not paid to care. They're not even authorized to care. Its the politicians WE put in power who do this and as Americans (those of us that are) WE HAVE THE RIGHT and WE HAVE THE DUTY to challenge them.

        What we need is a good old impeachment, to show the public that they are not powerless to challenge this.

        I am ALL FOR catching criminal masterminds, terrorists, and the like. I was an Intelligence Analyst in the US Army and I know that we DON'T need to violate the privacy of private citizens in order to pursue the real criminals at borders.

         

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      Anonymous Coward, Apr 8th, 2011 @ 10:02am

      Re: Really?

      because the founding fathers of this great nation decided that it was so important that they emblazoned it into the supreme law of the land?


      also AMEN to law enforcement not supposed to being easy.

       

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    Jon Renaut (profile), Apr 8th, 2011 @ 9:52am

    Loopholes?

    Can an email provider get around this by doing something to your content every 179 days to keep the clock resetting? Moving it to another server, maybe?

     

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      Anonymous Coward, Apr 8th, 2011 @ 10:03am

      Re: Loopholes?

      I think this is another anti file obesity program. You have to make your fat-ass files move once in a while, so that they don't start filling more than their allotted space. That used to be the disk Defragger's job, but since operating systems themselves have become bloated, they can't be trusted to make their files exercise properly anymore.

       

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    Anonymous Coward's raped daddy, Apr 8th, 2011 @ 9:54am

    When the Gov. makes comments like that it should be national headlines.

    It's truly unbelievable what is going on right now.

     

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    Anonymous Coward, Apr 8th, 2011 @ 9:59am

    Can we apply that theory to copyright?

    After 180 days, the copyright is considered "abandoned" and is now in the public domain.

    Go Go! Write that down!

     

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    FM Hilton, Apr 8th, 2011 @ 10:09am

    Well, let's just put it this way: the fewer restrictions the government has to pry their way into your personal freedoms, the easier it is for them to do so.
    They don't care, really about what you want-especially privacy, and believe me, they'll take it away from you quicker than you can blink an eye.
    You see, we're all guilty of something in their eyes. They just have to prove it. Removing the "roadblocks" to them is what they want.
    Or as someone once said: "The Constitution is nothing more than a piece of paper."
    A disposable one, at that.

     

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    umccullough (profile), Apr 8th, 2011 @ 10:11am

    Public should get government emails > 180 days

    Why can't the public receive unrestricted access to government-stored emails > 6 months? The infrastructure is paid for by taxpayers - we should gain access to that information as a result.

     

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      Anonymous Coward, Apr 8th, 2011 @ 3:27pm

      Re: Public should get government emails > 180 days

      Heh, obviously you don't understand how (the US) government(s) work. Minimal transparency, do what we say not what we do.

       

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    sehlat (profile), Apr 8th, 2011 @ 10:16am

    From "Touch of Evil" (Orson Welles)

    A policeman's job is only easy in a police state.

     

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    Squirrel Brains (profile), Apr 8th, 2011 @ 10:29am

    Abandonment traditionally required the intent to abandon. I think it would be hard to say that leaving data online for 180 shows that your formed that intent (unless, of course, we are talking about anything on myspace, which I think it is safe to assume that everything currently on myspace has been abandoned).

    It sounds like we need to have pitchfork and torch aficionado convention on the steps on the capital building.

     

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      The Devil's Coachman (profile), Apr 8th, 2011 @ 11:25am

      I think we need more than pitchforks and torches

      Something on the order of RPGs, AK47s, and flamethrowers would be more appropriate. Oh, and don't forget to bring the rope, as a lot of it will be necessary. After a number of high-tensile stresses, the ropes tend to weaken and fray, and we wouldn't want any of the fascisti to be unceremoniously dropped on the ground, only to have to marched back up the steps with a new piece of rope. Do it right once, the first time. For the really industrious, guillotines would also be welcome, although they are a bit more exacting in their construction requirements. However, they do provide more entertainment opportunities, such as bowling and soccer.

       

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    iamtheky (profile), Apr 8th, 2011 @ 10:35am

    how about ...

    A cluster of 2 servers, and a nice little script that watches created dates. When a file reaches 150 days it moves to the other server leaving a shortcut behind. repeat.

    The good thing about old simple laws, is the simple part.

     

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    Anonymous Coward, Apr 8th, 2011 @ 11:10am

    Theres something interesting immediately after the part that got quoted earlier in the thread:

    In one recent case, for example, law enforcement officers knew that a child exploitation subject had used one account to send and receive child pornography, and officers discovered that he had another email account, but they lacked evidence about his use of the second account.

    IANAL, but as a citizen I can tell you I would have no problem at all with a judge writing a warrant to search the second account if they had already presented me with enough evidence to write a warrant on the first account.

    I dare say practically everyone here would agree.

    So how does such a stupid miscarriage of justice get used to defend warrantless stuff?

     

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      nasch (profile), Apr 9th, 2011 @ 9:45am

      Re:

      I'm not so sure. Take the "child exploitation" bit out of it since that's just there to get an emotional reaction. If a suspect in a criminal investigation was thought to use his car in committing a crime and they got a warrent to search his car, would that mean they should automatically get a warrant to search his house too, even though they have no probable cause to suspect any criminal activity at the house? If so, why? If not, why is it different online?

      I would tend to fall on the side of the fourth amendment. No probable cause, no warrant. That's what those standards of evidence are there for. Remember also that a warrant is to search *for* something, not just to search. They have to know what it is they're looking for and demonstrate what reason they have to believe it's there.

       

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    johnny canada, Apr 8th, 2011 @ 11:12am

    Antigua

    If I had the money a would set up a nice 'cloud' service in Antigua.

    They have no love for U.S. laws

    http://www.associatedcontent.com/article/235451/net_gambling_still_illegal_in_the_us.html

     

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    Capitalist Lion Tamer (profile), Apr 8th, 2011 @ 11:18am

    From your representatives in Washington

    Dear public:

    Why should anything apply to anything?

    As a nation with, what, several hundred years under our belt, we should collectively and legislatively move on from the outdated dogma and starry-eyed statements about "privacy" and "freedom."

    It is (from what we've been told) a new millenium, and as such, should be subject only to what has been legislated since the year 2000 or 2001, whichever one it is that actually started the new millenium.

    If we are to become a truly great nation, we need to throw off the chains of freedom, which have held many of us back (especially those of us in Washington) from achieving the level of intrusion and paranoia this country so richly deserves.


    Sincerely,

    Your "Representatives" in Washington

    [Note: Please have intern strike quotes around Representatives. THX.]

     

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    Jesse Jenkins, Apr 8th, 2011 @ 11:38am

    Cryptonomicon

    It seems that whenever I comment on these blogs, I make literature references. That said, I recommend reading Neal Stephenson's Cryptonomicon, which is a fiction tale with a subplot about a group of "techies" attempting to establish a "Data Crypt" located in international waters and capable of holding/storing large amounts of info for extended periods of time, and beyond the snooping eyes of any government. A bit like the pirate radio DJ's on abandoned oil drilling platforms off the coast of the UK. It's a great read, but directly concerned with this precise issue!

     

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      Anonymous Coward, Apr 8th, 2011 @ 1:14pm

      Re: Cryptonomicon

      maybe that's what all those "we'll buy your gold for half its actual value" commercials are eventually going to get at. CryptoCash™ FTW.

       

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    DJ (profile), Apr 8th, 2011 @ 12:38pm

    Not just digital...

    While I understand that it's not really a "tech" issue, where was the outrage about full body scanners by TSA violating 4th amendment; or pat-downs?

     

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    weneedhelp (profile), Apr 8th, 2011 @ 1:00pm

    Sadly, the avg American does not care. Here is a comment from a video I have:

    He doesn't need to take money from anyone, but yet it's beeing offered to him

    '' ..so what's wrong with that?'' I'm askin the same guestion. Say I can afford to buy

    my own house, but still people want to be nice and help me out with some shopping. What's wrong with that? nuthin says I... o.0 I don't get this video...

    and

    I don't quite see an issue here, regardless. This video lacks merit. Every politician is going to be flawed, why focus on something trivial. Waste of time.
    -Typos not mine.

    So these dimwits around us just dont care.
    http://www.youtube.com/watch?v=N3wGZb1SmKg

     

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    383bigblock (profile), Apr 8th, 2011 @ 1:08pm

    Total Shame

    The founding fathers are upstairs looking down on us with absolute disbelief. They're scratching their heads trying to figure out where they went wrong. Under the guise of civility and progress we've managed to bastardize all that they accomplished within a near perfect document(Constitution). When politicians, lawyers, and supposed historical experts take apart individual words that the founders laid out in order to perpetrate their not so hidden agendas and destroy the constructs of our freedoms, and ability to self govern it makes you hope for the second chance on a distant planet that isn't polluted by the concepts of politics. Twisting and interpretting and re-interpretting the common sensical ideals the founders set in motion is nothing more than a pretense to anarchy. We're watching the slow demise of our individual rights for the betterment of "society" and to what end, to help some over stuffed flatulant politician pander to the fears of many at the expense of furthering their careers with votes from the un-educated. The more we let the Government trim our rights the deeper they will cut until no-one here is without the shadow of big brother veiling their lives.

     

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    Anonymous Coward, Apr 8th, 2011 @ 2:31pm

    You guys didn't read Obama's presidential fineprint? It clearly said "Taking away liberties and privacy" was their top priority.

     

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      The eejit (profile), Apr 8th, 2011 @ 3:36pm

      Re:

      Not just Obama's - every President for the last 30 years. There's a Bill Hicks joke about JFK and Presidents that seems boldly reminiscent of this.

       

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    LindaJoyAdams (profile), Apr 9th, 2011 @ 8:44am

    4TH amendment

    Before there was the Internet, etc. many, like me saved newspaper clippings, recipes, etc. in boxes and file drawers. Now we can ' save' in folders attached to our e-mails and access them from the ' abandoned air' anytime we choose. My free blogger.com website was started for my own personal ' savings' and writings, etc. Its freely shared with anyone. So, if I get this correctly, if I don't look at something for 180 days, a search warrant will not be needed? Its a public website, free to anyone to look at any way. BUT! We all have friends and relatives who leave their e-mails on line ' forever' and one now has 5000 not yet deleted. These become 'public' to the govt after 180 days, too? Even though nothing of import to the govt is in such; the govt should still respect ones privacy and have a judge OK such an invasion. One needs to have a sense of being able to talk or e-mail ones friends without Big Brother or Sister eaves dropping as we ' bare our souls' of our most personal feelings. What one may say in a private conversation often might be something one would never ' share, or act on those feelings, with the world.' Linda Joy Adams

     

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    Michael Couch, Apr 11th, 2011 @ 10:34am

    ECPA

    What are they crazy? It was hard to tell from the article whether the law already allows them to access data over 180 days old or not. So which is it? Is it already that way or can we still stop it?

    This is totally totalitarian and insane. Unless we are already in a Fascist State. Oh, some of us didn't know that.

    Charles Michael Couch

     

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    Jason, Apr 11th, 2011 @ 11:23am

    What?? Usually I consider tech dirt a reliable source of info, but I've never heard of any such law that says your personal data can be accessed without a warrant after 180 days because it's considered "abandoned". Are they talking about emails that you put in the trash, or all data that you put on a web server? This article is woefully lacking in important details. Is it only email data, or any data hosted on a web server? I hosted a website for 5 years. That data was online for more than 180 days. I highly doubt the feds could "legally" just access my private data files just because they were on the web server for more than 180 days.. That said, if the writer of this article is specifically referring to emails that have been placed in to "the trash" and deleted.. Those files remain, on say a gmail or yahoo email server, for 90 days (after you deleted them - for evidence gathering purposes incase you were trying to cover something up) and are then permanently removed from the system.. Rendering the whole 180 days thing a moot point.

     

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    Dennis, Apr 13th, 2011 @ 10:09am

    4th Amendment

    And this is the same crowd that attacked Bush endlessly over "illegal searches", etc. What hypocrites!!!

     

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    Phineas T. Bluster, Apr 13th, 2011 @ 6:16pm

    Fourth Amendment

    Damn! I'd like to leave a comment but I gotta go quick and dump my bestiality and kiddie porn.

     

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