Federal judge rules that police can search your e-mail without telling you
Police can dive into your e-mails without notice
If the po-po suspect that your e-mail reveals evidence of criminal activity, they can get a search warrant and start word-searching your archives without your ever being told. So says Oregon judge Michael Mosman.
In a decision this month, Mosman ruled that the Fourth Amendment — protection from unreasonable search and seizures — does not guard us from this kind of search. Given that I often exchange e-mails with sources who would prefer to stay anonymous, this ruling alarms me. Though hopefully my writing would never expose me to a criminal investigation. Legal blogs are buzzing about the ruling. (See the Volokh Conspiracy and the Wall Street Journal Law Blog.)
The problem with this is that you would never even know that the search happened. It would all take place without any notification to prevent you from deleting e-mails or refraining from continuing your illegal activity. In explaining his ruling, Mosman writes that the Fourth Amendment protects our homes from unreasonable searches and seizures, but that when we use the Internet, our actions are no longer in our homes and we are no longer “acting in private space at all.”
Mosman isn’t even some old, antiquated, “I-don’t-understand-the-Internetz” dude. Born in 1956, he’s a former U.S. Attorney of Oregon, who was appointed to the bench by George Bush in 2003. Here’s his bio and photo.
Mosman reasons that when we send e-mails and instant messages, they travel from computer to computer and are “held” along the way by third parties: ISP providers. Thus, the police can serve the ISP providers with a search warrant and get the information turned over without notifying an e-mail account holder. Mosman explains in his decision posted by the WSJ Law Blog [PDF]:
Much of the reluctance to apply traditional notions of third party disclosure to the e-mail context seems to stem from a fundamental misunderstanding of the lack of privacy we all have in our e-mails. Some people seem to think that they are as private as letters, phone calls, or journal entries. The blunt fact is, they are not.
But aren’t ISPs acting like the Postal Service here? We also put our written communication into the hands of postal workers, but we don’t see that as invalidating its private nature. Just because mail is electronic shouldn’t change its right to privacy. And with email, there’s a far greater mass of content to be seized. Whereas police might seize one package from FedEx — an example cited by Mosman — we send out tons of emails each day.
Mosman argues that the electronic communications are “stored” by the third party ISPs, and that material can be seized from third parties without notifying the first party sender and second party receiver. I think this is a rather unfortunate ruling.
Read it for yourself here.
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[...] If the po-po suspect that your e-mail reveals evidence of criminal activity, they can get a search warrant and start word-searching your archives without your ever being told. So says Oregon judge Michael Mosman. full story [...]
I can already hear the rationalization from certain segments of our public on this: “Well, if you’re not doing anything wrong, then why worry about it?”
The next question that always goes unanswered is this: “Who defines what is wrong?”
Everybody except criminals wants police to be granted tools to solve crimes. My T/S blog is meant to support law enforcement personnel who care about justice first, and conviction rates later. But wrongful convictions abound in some jurisdictions partly because police investigations lack transparency, because police are allowed to lie to suspects, because police have become skillful at neutralizing pro forma Miranda warnings.
If the ruling by this judge becomes the law in other jurisdictions (perhaps it won’t), the First Amendment and the privacy implications are huge. Those implications will probably receive lots of attention, as they should. But I wonder if the implications for the fair functioning of the criminal justice system will receive the discussion called for.
An even more frightening proposition has been presented to Canadians. If passed in parliament police will be able to snoop e-mails and internet activity “WITHOUT A WARRANT”! The abuse of existing police power in Canada is reported on a daily basis yet police claim, without providing any evidence, that warrants hamper their investigations! If they are permitted to do this without the requirement of the only document that can link them to and limit their activities they will almost certainly use this power to undermine justice and further their own causes. Completely outside of the realm of crime fighting they will be able to obtain any private information, not necessarily concerning illegal activities, and consequently dispense it where it will further their personal and collective goals. Corporate and government information, indiscretions etc.; all the information that we expect to be private may be available to police. Oh yes, they assure us they can be trusted and our information will be secure! If ever there was a case for military grade encryption of my Christmas letter to grandma this is it.
I’m not really surprised at all by the judge’s ruling in this case. As far as I can tell this was a pretty straightforward application of the law: the cops got a warrant and complied with all the necessary requirements.
Even if the ISP is acting like the postal service, the government can still search your snail mail as long as they get a warrant. I frankly don’t know if they have to tell you they did it if all they do is read it and then send it on its way.
And the fact that we send more information via email than via FedEx shouldn’t matter either. The Constitution doesn’t relate the degree of privacy protection given to a particular communication medium to how much we use it.
I could see having a problem with the underlying statutes and Supreme Court opinions the decision is based on for allowing this type of notice-free search, but that’s a broader public policy issue that goes beyond what the judge was asked to do here.
Easy enough. Take your email paste it into notepad. Use the find and replace all function. Replace AEIO with 4310 or something similiar (one at a time). This will help to scramble key word searches. Better yet use GNUPG and convince your friends to do the same.