Court Effectively Says No 4th Amendment Protection To Copies Of Emails

from the that's-not-good dept

Wed, Mar 17th 2010 12:38pm — Mike Masnick

Earlier this year, we wrote about some Fourth Amendment questions when it came to information stored in the cloud -- and a recent legal ruling provides some new troubling views on this matter. Slashdot points us to Orin Kerr's excellent analysis of a recent 11th Circuit decision, that basically says once an email is delivered, there's no Fourth Amendment protections of that email. But, as Kerr notes, the real problem here (as with so many issues in the digital world) is that the court seems to be confusing copies of digital content with the original:

For a real-world example, imagine you write a letter and photocopy it before you put it in the mail. You file the copy in your closet and send the original. During the course of delivery, the original is protected by the Fourth Amendment; when it arrives, you lose Fourth Amendment protection. But the fact that you lose Fourth Amendment protection in the original does not mean that the Government can break into your house and read the copy you made. Conversely, the fact that the recipient of the mail does not have Fourth Amendment rights in the copy does not mean that the government can break into the recipient’s house to read the original.

For these reasons, the court should have analyzed access to the e-mails stored with the ISP based on whether there was a reasonable expectation of privacy in that remotely stored copy accessed, independently of delivery of another copy....

We see this over and over again when it comes to the digital world. People try to automatically equate it to the physical world, not recognizing that they're dealing with independent copies, not the original (hence the argument that "file sharing is the same as theft.") Unfortunately, in this case the ruling could do some serious damage to how the government and law enforcement views your expectation of privacy with regards to your emails.

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Filed Under: 4th amendment, copies, email

16 Comments

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vivaelamor (profile), 17 Mar 2010 @ 12:42pm

Encryption.
Take back your privacy with GNUPG.
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pixelpusher220 (profile), 17 Mar 2010 @ 12:57pm

Plausible real world scenario
I send a letter to a friend. The process for transferring the letter from mail carrier to post office involves making a copy of the letter. Likewise for each separate post office the letter passes through a copy is made and stored for some amount of time before being destroyed.

After the original is delivered to the final destination, the sender loses the 4th amendment protections present in transit and the recipient gains them for the possessed letter.

What about all those copies that exist along the way?

It seems to me this pretty well replicates the digital process of sending an email. Would those physical copies be protected?
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Ryan, 17 Mar 2010 @ 1:26pm

hmm
There seems to be a trend in tech rulings, where the victor is the one whose analogy the judge better understands.

If only we could have judges who actually understood tech and the internet.

Even better would be politicians who understood it too.
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ITWARZ, 17 Mar 2010 @ 1:27pm

My View On Email Security...
Never put anything in an email you can't have posted on a billboard in NY's Times Square. - ITWARZ
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:Lobo Santo (profile), 17 Mar 2010 @ 1:42pm

Re: hmm
Pish! Elect reputable scientists!!
(and start a lawyer hunting season to control their population)
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Wiggins, 17 Mar 2010 @ 1:58pm

Incorrect analogy
I believe the mail analogy is missing one crucial step. Sending an email isn't like sealing it in an envelope and mailing it off you are actually doing something more along the lines of:

a. alice writes a letter
b. alice photocopies the letter and sends to charles, asking him to mail it to bob
c. charles photocopies the letter and sends it to bob.
d. bob receives the letter
e. police go to charles and ask to see his copy of the letter
f. charles agrees.

in this situation can alice reasonably expect to have 4th amendment protections over the copy in charles' possession?
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Anonymous Coward, 17 Mar 2010 @ 2:41pm

Re: Incorrect analogy
I agree, a more correct analogy. Sending the letter to ABC corporation and asking them to forward the letter to Bob would be the same thing. ABC corporation has the right to “give it up” if they want. We need P-2-P email instead of Yahoo, Gmail, etc. for the letter analogy to be correct.
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DJ, 17 Mar 2010 @ 3:16pm

Re: My View On Email Security...
That's pretty much the best advice when it comes to anything involving (no matter how slightly) the internet.
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Anonymous Coward, 17 Mar 2010 @ 3:56pm

Re: Encryption.
-----BEGIN PGP MESSAGE-----
qANQR1DDDQQJAwKQ6VTiJaeaTJjSWAFxqdnE+uVwCAaEk0SCFwtFCAuMQdGoctoQ
xfVFXFyGT8jcG2d2e+tb 83ZuMHuyKZTK0Z5ozfMqVAQPAPT+i754ehtPDzcJQljl
IXaCS/9WbA3BilFujjQ=
=t3fQ
-----END PGP MESSAGE-----
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Rob, 17 Mar 2010 @ 8:29pm

Infinite goods
Remember this is the Internet and we're talking about infinite goods. I think the only original is the one stored on your computer. All the ones after that are copies, right? Isn't that what you've been saying all along. Everything on the Internet is a copy, right?

As Anonymous Coward said,encryption solves this problem everywhere.
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rockman, 17 Mar 2010 @ 8:40pm

i like these articles where judges misinterprets or conflates the analog value of an original and then superimposes that value on a seemingly never ending perfectly reproducible digital copy. in aesthetics this destabilization becomes a critique on how meaning is created. picasso paints the picture and the value is in the individuality, warhol does a print of thirty and so where lies the essence or truth. judges are asking the wrong question or maybe basing an analysis on one system of thought- platonic idealism as an example and having an event meaningful only in a phenomenological context. number 6 ask where is the fourth amendment protection and i would say that the loss of the priority of the original renders it moot. you have no protection or guarantee in a digital age both because there is no original and because the methodology of the question destabilizes any effort to create a centered concept of originality. that is what i like about piracy and p2p, the real value is not in stealing content but in deconstructing how we create value and truth. although not everybody that downloads a mp3 from the bay is necessarily thinking of post structuralist critiques on meaning, arguing piercean semiotics to the judge probably wont get you far either.
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:), 18 Mar 2010 @ 4:21am

There is one thing missing from the email process right now.

The envelope, and that is encryption.

Emails today are like sending letters without a seal.

Even though encryption is only good for 10~20 years before it can be broken, if you encrypt you are showing clearly that the intention is not to be public but private. You could even use ROT13 and that should be enough to show an attempt at privacy.

If that is not the case, there is a lot of banking data just waiting to be mined.
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Dementia (profile), 18 Mar 2010 @ 4:33am

Re: Infinite goods
Unfortunately, encryption while a temporary solution, doesn't fix the problem. Remember, if it can be encrypted by man, with enough computer assistance, it can be broken by man.
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Anonymous Coward, 11 May 2010 @ 1:46am

an email, more correctly, is like a post card, anyone can read it along the way or make copies of it, its "put into the public" when you email it, expect no privacy with it and you wont regret those emails to your secretary
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Gamezone, 21 Jun 2012 @ 11:42am

Reply
People try to automatically equate it to the physical game world, not recognizing that they're dealing with independent copie games. เล่นเกม เกมส์
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UN-SS# 488-74-2586, 28 Nov 2013 @ 8:58pm

SLAVERY
A government that is incapable of defending the laws and amendments on which this country was founded is BLANTANLY OBVIOUS. Those in power are ENEMIES of "We The People" and have engaged in HIGH TREASON.
How much worse does it have to get before the people who are acting like docile domesticated SLAVES, stand up for their countryman's most basic fundamental Unalienable rights as a human being the Almighty GOD "YHWH" Himself has given to each one of us.
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