The case is In re United States, — F.Supp.2d —-, 2009 WL 3416240 (D.Or. 2009), by District Judge Mosman. The issue in the case is whether the government must notify a person when the government obtains a search warrant to access the contents of the person’s e-mail account. Judge Mosman concludes that Rule 41 and 18 U.S.C. 2703(a) require the notice to be served on the ISP, not the account holder, as a statutory matter. He then rules that there is no constitutional requirement of notice to the account holder because the Fourth Amendment does not apply to the e-mails under the third-party doctrine. [CORRECTION: SEE BOTTOM OF POST] Here’s the relevant analysis:
The Fourth Amendment protects our homes from unreasonable searches and seizures, requiring that, absent special circumstances, the government obtain a search warrant based on probable cause before entering. This is strong privacy protection for homes and the items within them in the physical world.When a person uses the Internet, however, the user’s actions are no longer in his or her physical home; in fact he or she is not truly acting in private space at all. The user is generally accessing the Internet with a network account and computer storage owned by an ISP like Comcast or NetZero. All materials stored online, whether they are e-mails or remotely stored documents, are physically stored on servers owned by an ISP. When we send an e-mail or instant message from the comfort of our own homes to a friend across town the message travels from our computer to computers owned by a third party, the ISP, before being delivered to the intended recipient. Thus, “private” information is actually being held by third-party private companies.
This feature of the Internet has profound implications for how the Fourth Amendment protects Internet communications-if it protects them at all. The law here remains unclear and commentators have noted that there are several reasons that the Fourth Amendment’s privacy protections for the home may not apply to our “virtual homes” online. First, it is uncertain whether we have a reasonable expectation of privacy in information sent through or stored by ISPs because the Fourth Amendment does not protect information revealed to third parties. [Citation to work of bald academic deleted.]
Here, the defendants voluntarily conveyed to the ISPs and exposed to the ISP’s employees in the ordinary course of business the contents of their e-mails. The Google privacy policy explicitly states that Google will share personal information of its subscribers when it has “a good faith belief that access, use, preservation or disclosure of such information is reasonably necessary to ... satisfy any applicable law, regulation, legal process or enforceable governmental request.” Google Privacy Policy, http:// www.google.com/privacypolicy.html (last visited May 13, 2009). The court understands that other ISPs have similar privacy policies. See, e.g., Microsoft Online Privacy Statement, http://privacy.microsoft.com/en-us/fullnotice.mspx (last visited May 13, 2009) (stating that personal information may be shared to “comply with the law or respond to lawful requests or legal process”); AOL Network Privacy Policy, http://about.aol.com/aolnetwork/aol_pp (last visited May 13, 2009) (“The contents of your online communications, as well as other information about you as an AOL Network user, may be accessed and disclosed in response to legal process (for example, a court order, search warrant or subpoena); [and] in other circumstances in which AOL believes the AOL Network is being used in the commission of a crime....”). Thus subscribers are, or should be, aware that their personal information and the contents of their online communications are accessible to the ISP and its employees and can be shared with the government under the appropriate circumstances. 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.
As I have blogged before, I disagree: I think e-mails are protected under the Fourth Amendment despite the third-party doctrine for reasons explained in my forthcoming Stanford Law Review article Applying the Fourth Amendment to the Internet: A General Approach (click on the link and then press the download button to download a draft of the article). Still, I thought the decision was worth noting given the importance of the issue and the still-unsettled state of the caselaw.
CORRECTION: In the course of re-reading the opinion to post it, I recognized that I was misreading a key part of the opinion. As I read it now, Judge Mosman does not conclude that e-mails are not protected by the Fourth Amendment. Rather, he assumes for the sake of argument that the e-mails are protected (see bottom of page 12), but then concludes that the third party context negates an argument for Fourth Amendment notice to the subscribers. I missed this because the reasoning closely resembles the argument for saying that the Fourth Amendment doesn’t apply at all, and I didn’t read the earlier section closely enough. That’s obviously a much narrower position, and I apologize for misunderstanding it the first time in the quick skim I gave it.
ChrisTS says:
Yikes. Email, cell phones... It may be time to get off the grid.
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October 28, 2009, 7:48 pmJoeMI says:
What if one were to set up an email server in their home?
Further, what if one uses encryption for their email, browsing, etc... raising their expectation of privacy?
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October 28, 2009, 8:20 pmSplunge says:
Nonsense, ChrisTS. Encryption that even the NSA can’t break is yours for the asking and downloading. You just need to put a nice digital “envelope” around your communications, is all. The government can’t pick the lock to your brain.
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October 28, 2009, 8:23 pmSteve says:
People sending messages through the internet may expect a certain level of privacy, but that is not the case. When you send an email, it is traveling in public space. It is the equivalent of yelling a message across a crowded room without any light. Just because you can’t see the other people in the room, you can’t just assume that no one is listening. During this period, if your email is intercepted there is no invasion of your privacy. If you want privacy, you should be encrypting your message. By encrypting messages you are raising the level of expected privacy.
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October 28, 2009, 8:36 pmOren says:
What utter nonsense. I voluntarily convey letters to the US Postal Service in the ordinary course of business.
Speaking of which, is Ex parte Jackson still good law? It articulates a much stronger standard than the recent 4-part REP test, so I imagine not.
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October 28, 2009, 8:38 pmjosh bornstein says:
I have a telephone answering machine at my house. So, if you call me and leave a message, it’s in my home, where–presumably–there is an expectation of privacy that applies. But lots of people have an answering service as part of their phone package, and messages are recorded off-site (ie, not in the subscribing individual’s home.). Does this mean that when I leave a message there, I have no expectation of privacy? That the person for whom the message was intended has no expectation of privacy? This seems perverse, but would follow from the court’s logic, I think. Or am I missing a logical or legal distinction?
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October 28, 2009, 9:03 pmMark N. says:
I think it’s good law as to the search of postal mail, but not sure what its status is as general 4th-Amendment precedent. In Olmstead v. United States (1928), Brandeis in dissent attempted to apply the Jackson doctrine more generally:
The Court declined to thus hold, though. Olmstead itself was overturned by Katz v. United States (1967), which cites Jackson as support for the proposition that “what [a person] seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected”. But the opinion as a whole wasn’t really phrased as a revival or reaffirmation of Jackson, beyond that brief mention.
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October 28, 2009, 9:09 pmDYSPEPSIA GENERATION » Blog Archive » District Judge Concludes E-mail Not Protected by Fourth Amendment says:
[...] Read it. [...]
RainerK says:
Am I correct to understand that e-mail deleted by a user from the ISP’s server, but retrievable using forensics are also not protected by the 4th amendment?
What about storage and server facilities rented by a company/individual to store data as backup?
What about interim storage that happens during transmission of data?
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October 28, 2009, 9:16 pmAnonperson says:
It’s worse than that. I think one thing that the law has not yet fully understood is that in the digital world, words like “stored” do not have the same kind of clarity that they traditionally did. For example, if a phone call is carried over a digital line, then the bits are definitely stored, albeit for a short time, on equipment that is not owned by the consumer. All digital electronics use various kinds of buffering and latching electronics to store bits during transmission. That is the nature of digital.
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October 28, 2009, 9:17 pmpc says:
Not quite true. My mail server is a leased server (which may or may not bring up another interesting 4th amendment question), but all communications between my mail clients from any location are done securely (SSL). The message is not stored on a client or the server in an encrypted form, but the contents to and from my clients and servers are encrypted. iirc, GMail also allows for SSL.
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October 28, 2009, 9:18 pmEH says:
J. Edgar just jizzed in his coffin.
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October 28, 2009, 10:29 pmreadery says:
What’s the difference between this situation and renting a house or postal mail?
We recognize an exception to the third-party doctrine for tenants and postal mail, but why for them and not for this?
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October 28, 2009, 10:37 pmdisintelligentsia says:
My question is, if there is no reasonable expectation of privacy why do we punish wiretapping of Email (and other electronic communications) a crime? I would think that having your account secured by a password would create a presumption that there is a reasonable expectation of privacy. Further, as others have noted, you can easily set up a SSL connection for email and any other electronic communication so that others can’t view it in transit.
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October 28, 2009, 11:06 pmArthurKirkland says:
I have no doubt Judge Mosman was a cutting-edge legal scholar . . . in 1934.
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October 28, 2009, 11:41 pmOren says:
Mark N, thanks for the explanation.
Because Congress can pass a law creating a right in excess of the Bill of Rights. Wiretapping is a crime because Congress said it is a crime (and when such wiretapping happens on commercial interstate telecommunications system).
I think “storage” can be reasonably interpreted as making a copy with the intent to keep it. A buffer or cache is not storage any more than a delivery van is. Of course, the courts might not take such a straightforward approach.
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October 28, 2009, 11:53 pmJudge rules email not protected by Fourth Amendment « Internet Scofflaw says:
[...] rules email not protected by Fourth Amendment Apparently the ruling hinges on the fact that email is stored outside the home. But snail mail is protected when it’s [...]
KCrary says:
How does this reconcile with Warshak v. US?
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October 28, 2009, 11:54 pmElk says:
So the government does not need to notify you if it searches your safe deposit box stored in a bank?
I would be quite surprised if that was never litigated and seems an obvious analogy.
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October 29, 2009, 12:15 amCornellian says:
Some people seem to think that they are as private as letters, phone calls, or journal entries. The blunt fact is, they are not.
Letters are actually handed over to the government’s possession (i.e. the Postal Service) — you would think that’s much worse from a 4th Amendment point of view than having emails in the possession of a third party.
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October 29, 2009, 1:24 ambrentpeterson01 says:
It seems to me that the court is begging the question here. The defendants’ argument is that, if the government does not notify the defendant of the search warrant, then it is not appropriate for the ISP to share the email with the government. The court responds by noting that customers are informed that ISPs may share their email content with the government if the disclosure is compelled by law. Fair enough, but doesn’t the “law” include the Fourth Amendment and its protections? The court, with its circular reasoning, seems to dodge this issue.
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October 29, 2009, 1:54 amTweets that mention The Volokh Conspiracy » Blog Archive » District Judge Concludes E-mail Not Protected by Fourth Amendment -- Topsy.com says:
[...] This post was mentioned on Twitter by Lucas Newcomer and Shannon, Kevin Dunsford. Kevin Dunsford said: The Volokh Conspiracy » Blog Archive » District Judge Concludes E ...: The user is generally accessing the Inte.. http://tinyurl.com/ykvj28j [...]
Borris says:
The proper analogy to e-mail isn’t postal mail or telephone conversations but telegraphs.
You are transmitting a message in cleartext, via a binary medium (1/0s, long/shorts), that is handled and re-transmitted by a number of 3rd parties beyond the senders control.
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October 29, 2009, 3:49 amVisitor Again says:
The courts are completely out of touch with reality on this issue. Why is it that I can use a bank only if I forfeit my right to privacy as to my financial records? Why is it that I am able to send a message using the most modern technology only if I give up any right to privacy as to my communications? Using banks and e-mail is essential in the modern world. We ought not to have to sacrifice our privacy by taking advantage of them. The presumption ought to be that our bank records and e-mail communications are private.
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October 29, 2009, 5:55 amGene Madison says:
The difficulty arises from the necessity of enforcing the laws consistently with the rights reserved to the people, not so much the form in which the information exists.
The same consideration for US Mail should apply, and any warrant issued should be specific as to what should be obtained, however, such evidence can easily be sent by an officer or other agent in order to obtain additional warrants, and thus any information obtained should be for the purpose of preventing the commission of a crime, and not as evidence of a crime already committed.
Because E-mail accounts are password protected, that establishes the person has the reasonable expectation that his mailbox is secure, and being that the E-mail is addressed to a specific account, the sender also has the reasonable expectation that the person at the address will be the only one to receive it.
So unless the warrant contains the senders E-mail address, or the subject contained in the E-mail, no warrant should issue. And regardless of whether it exists as a Private or Public corporation, since both owe their existance to law, they’re both bound by the same principles.
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October 29, 2009, 5:56 ampc says:
So the government doesn’t need a warrant to search a package you send through UPS, FedEx or the Post Office? Besides, telegraph messages didn’t use 128-bit SSL, my email does. You can sniff the packets all day, but good luck figuring out what they say.
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October 29, 2009, 9:37 amRepublican says:
The 4th Amendment was good while it lasted.
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October 29, 2009, 10:33 amSuperSkeptic says:
The Fourth Amendment protects our homes from unreasonable searches and seizures,
This is strong privacy protection for homes and the items within them in the physical world.
When a person uses the Internet, however, the user’s actions are no longer in his or her physical home
The law here remains unclear and commentators have noted that there are several reasons that the Fourth Amendment’s privacy protections for the home may not apply to our “virtual homes” online.
Someone really needs to inform this antediluvian moron in a robe that the Fourth Amendment applies to more than just our homes.
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
See?
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October 29, 2009, 10:45 amJKB says:
The postal analogy is missing the point. An email sent in plaintext, i.e., unencrypted by the sender/decrypted by the receiver, is analogous to a postcard not a letter or package. The plaintext email may leave a locked (password protected) mailbox and arrive at a locked mailbox but while it is making its way through the system it is openly readable by any handler. Or anyone who gains access to the mailbag, for lack of a better symbol. Any network technician watching his routers or sniffing his network to locate a problem will see the content in readable text. Just like any postal employee can read a postcard that passes through their hands. Without steaming the envelope open or even holding it up to the light.
If you encrypt your email then it is like putting it in a sealed envelope similar to a letter. The network tech would only see the addresses and an unintelligible body.
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October 29, 2009, 11:55 amJKB says:
Your 128-bit SSL encrypts the connection between you and your email server. Unless you encrypt the message itself and the receiver decrypts the message himself, then it is going through the system in plaintext, readable by all.
In your case, your provider, a third party, has access to the content of your messages since the encryption is between you and them, not between you and the recipient.
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October 29, 2009, 12:01 pmBruce Boyden says:
“When a person uses the Internet, however, the user’s actions are no longer in his or her physical home;”
This reminds me of the reasoning in Olmstead. BTW, in 1928 telephone communications were usually connected by a human operator, who would stay on the line for a few seconds to make sure the call was connected — or perhaps longer, if Lily Tomlin was your operator.
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October 29, 2009, 12:05 pmuberVU - social comments says:
Social comments and analytics for this post...
This post was mentioned on Twitter by Ramon Krikken: District judge rules ISP-hosted email not protected by fourth amendment http://bit.ly/2FxrfS time to get with the times, judge. jeesh...
IP/Internet/New Media Blog » Breaking: 4th Amendment Does Not Apply To Email says:
[...] Orin Kerr, via Volokh, reports on District Court ruling, disagrees. Categories: Uncategorized Tags: Comments (0) Trackbacks (0) Leave a comment Trackback [...]
Mike McDougal says:
What a horrible analogy.
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October 29, 2009, 12:36 pmMike McDougal says:
I think it’s correct to say that privacy is fundamentally about information, not location. So I would agree with you. Making the wires stretch to another building isn’t relevant to the person’s underlying privacy concerns.
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October 29, 2009, 12:38 pmpc says:
Actually, no. I lease a dedicated server that handles my email. The only person with access to that server is me and the hosting company (it’s not managed, so I’m the only authorized user).
I could understand if the LEOs were packet sniffing, but saying you have no expectation of privacy because someone else is storing your property for you is bizarre. If I send a lock box by UPS to a storage locker I rent, can the police just walk in and examine the contents of the locker?
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October 29, 2009, 3:32 pmRobert Link says:
Spot on. The surprise is that a judge seems to get this, when so many users (especially tech-averse groups like lawyers) fail to understand “...handled and re-transmitted by a number of 3rd parties beyond the senders control.”
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October 29, 2009, 3:34 pmRobert Link says:
You are an outlier whose experiences have little to do with that of the vast majority of users. You might serve as a model of how things should work, but certainly not of how they do. The vast majority of email traffic is unsecured, unencrypted, and the telegraph/post-card analogies offered above control. Telephone answering machine and even sealed-envelope analogies fail. Absent a secure connection end-to-end and or encryption one cannot reasonably expect their email to be private.
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October 29, 2009, 3:42 pmMalchus says:
I’m trying to find a copy of this ruling. Does anyone know the court’s case #?
All that’s listed above is the WL #...and the case name is fairly generic.
(In re United States.) Not having any luck w/ Pacer or other search engines.
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October 29, 2009, 3:45 pmMalchus says:
Ah, found it. It’s not a new ruling, apparently–was from 6/23/09.
Case #s 08–9131 and 08–9147 in the District of Oregon.
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October 29, 2009, 4:13 pmThe Volokh Conspiracy » Blog Archive » Opinion on Fourth Amendment and E-mail says:
[...] blogged yesterday about a new opinion concluding that the Fourth Amendment does not generally protect e-mail. I [...]
Gene Madison says:
I think the rather than comparing it to the postal service, in which the cases are similar... We should compare it to driving on the freeway. Your car transports the data, and instead of the internet provider, your data is kept in a Storage Unit. If the storage unit is locked, and the storage place has a key... your stuff may be on someone elses property, but the storage company can’t just go into your unit, and look through your stuff.
Any papers you have in the unit are likely to be in plain text, that doesn’t give anyone the right to see what it says.
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October 29, 2009, 4:44 pmGene Madison says:
Handled and retransmitted by a number of 3rd parties? Not really. While the message may route through several servers, it is only handled by 2 mail domains, the senders and the receivers.
Unless you mean it passes over many “roads” or is routed (like all traffic, sometimes construction forces it down a detour.) but no different than a freeway system.
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October 29, 2009, 7:56 pmOn Gmail and the Constitution | DUI Law & Lawyers Blog says:
[...] to an opinion handed down earlier this year and currently making the rounds on legal blogs (here and here), the answer is [...]
Fermion says:
This will be overruled..
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October 29, 2009, 8:41 pmJDN says:
as long as the email is in your home its yours, once it leaves your home its everybodys, if you encrypt your email the other end has to decrypt it, ...key exchange for the advance user is easier but for the normal to novie user...forget it unless of course you have the time to dink around with showing someone how.
once a resource is on the internet, the internet owns the resource.
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October 29, 2009, 9:00 pmsamaim says:
You’d like to think that wouldn’t you, but I wouldn’t be sure about what the NSA can and can’t break if I where you.
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October 29, 2009, 9:36 pmsamaim says:
If you value privacy, it is well past that time.
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October 29, 2009, 9:38 pmJohnnie Walsh says:
Think your home is safe from search and seizure? Do you KNOW how ridiculously easy it is to get a warrant because some cop thinks you have stolen goods? (like sugar packets you stole from McDonalds) or drugs? 90% of money has traces of cocaine. (National Geographic). Besides, it’s likely that you commit 3 felonies a day (Harvey Silvergate). So kiss your fourth amendment good bye.
Now, the UPSIDE of all this is that you can’t encrypt your criminal sugar or greenbacks, but you can encrypt your email. Encryption’s probably the only answer (and make backups) because encrypted data is useless to YOU when it’s sitting in the DA’s office.
And, for what it’s worth, Bernie Madoff did not use e-mail (Fortune).
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October 29, 2009, 9:49 pmDan says:
I think sending an email is more like sending a letter than shouting it across a crowded room. People can intercept it and read it, but you should be able to feel confident that is not happening. I’m not sure what exactly what the laws are regarding the government reading your mail.
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October 29, 2009, 10:06 pmsharpinchitown says:
You say you want a revolution
Well, you know
We all want to change the world
You tell me that it’s evolution
Well, you know
We all want to change the world
But when you talk about destruction
Don’t you know that you can count me out
Don’t you know it’s gonna be all right
all right, all right
You say you got a real solution
Well, you know
We’d all love to see the plan
You ask me for a contribution
Well, you know
We’re doing what we can
But when you want money
for people with minds that hate
All I can tell is brother you have to wait
Don’t you know it’s gonna be all right
all right, all right
Ah
ah, ah, ah, ah, ah...
You say you’ll change the constitution
Well, you know
We all want to change your head
You tell me it’s the institution
Well, you know
You better free you mind instead
But if you go carrying pictures of chairman Mao
You ain’t going to make it with anyone anyhow
Don’t you know it’s gonna be all right
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October 29, 2009, 10:07 pmLibertarian777 says:
JoeMI I would probably think, from the Judge’s reasoning, that encrypting an email, you are NOT doing the following : “Here, the defendants voluntarily conveyed to the ISPs and exposed to the ISP’s employees in the ordinary course of business the contents of their e-mails. ”
as the ‘contents’ of the emails are NOT being exposed since they are encrypted, then he cannot apply such reasoning.
Following his reasoning, there is no expectation of privacy when sending a letter via USPS (since they are 3rd parties and the letter is not in your house). This judge’s argument could be used to listen in on (wired) telephone conversations, since the electrical signal emanates from your house, but goes via a 3rd party over wires OUTSIDE your house. Same for a cellphone, they can’t listen to you ON your cellphone, but they can intercept your phone call at the cellphone tower to which it connects.
Gotta love that the Patriot Act was passed, FISA was passed, government has expanded under both Bush and now Obama, just mention terrorism and all your constitutional rights are null and void (habeaus corpus disappears).
When it comes to the Constitution, one has to follow the INTENT. UNREASONABLE SEARCH AND SEIZURE... a REASONABLE person would NOT expect his/her emails to be public domain nor to be readable/searchable by anyone they do not authorise. The fact that the ISP can read it is not at issue, since we are NOT asking them to read it, but merely to transmit it and store it for us.
The slippery slope is indeed slippery
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October 29, 2009, 10:15 pmIn Whose Favor? « Oh, My! says:
[...] In Whose Favor? By jbiii As always–gummint deciding in favor of gummint. [...]
cjacobs001 says:
data traveling accross the internet has never been ‘secure’; it remains ‘interceptable’. (encryption does make it harder to read) data at rest in a not-at-your-place storage facility goes accross that insecure internet. why are we still having this question?
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October 29, 2009, 10:30 pmsharpinchitown says:
So the courts are using the argument that emails don’t reside in your physical third dimensional (3D) house — they are in essence not real since they don’t exist in the physical sense, so they aren’t protected (this would mean they are considered to exist in the time-space 4th dimension)? That is very telling.
The expansive corporate U.S. government and jurisdiction ALSO are not in actual physical three dimensions (except for the District of Columbia, the territories, Guam, Puerto Rico, Northern Mariana Islands, etc. and federal lands only WITHIN the Union states — this is a minuscule actual 3D land mass in reality) and instead reside in the 4th dimension (4D) of IMPLIED existence — just like your e-mails! — extending across the entire land mass of the Union states.
The Citizen of the soil or state Citizen (non U.S. citizen that lives on the physical 3D presence or Union state, that comprise the united States of America) is under state jurisdiction, not federal, and was born in one of the Union states. LEGISLATION PASSED ON CAPITOL HILL IN DC IS ONLY APPLICABLE TO U.S. FEDERAL CITIZENS, not Union state Citizens.
The U.S. citizen is considered a FEDERAL U.S. government citizen, being captured under federal jurisdiction — based on a 4D classification (but remember it doesn’t exist in physical reality, just like the e-mail) and also not protected by much of the Constitution and Bill of Rights (they only cover actual 3D persons and property, not implied), just like your 4D emails are not protected!! They just gave up the secret to the masses.
This federal 4D citizen lives in one of the “State of” federal municipally-controlled States– e.g. the State of California, the State of Oregon, the State of Florida, etc.
Citizens of the soil, or state Citizens, live in the Union states and are state Citizens. They are sovereign and do not have a *4D* persona. Their states are the original Union states with the original names like the Commonwealth of Pennsylvania, Minnesota state, the California Republic and so on.
Both exist now but one is real (3D Union state) and one is implied or created artificially (4D State of...) — government can only suppress you and your freedoms in one of them — guess which one?
Think of original Union states as a piece of bread. The federal government has gone and plastered it with peanut butter and everyone alive now, pretty much, thinks all there is is peanut butter, they don’t know that the PIECE OF BREAD is still there, only waiting for them to declare their status and return themselves back to their true home as free and sovereign peoples of a constitutional republic (not a democracy — democracy is a form of communism with the masses controlling the minority through legislation, thus violating individual liberties, a constitutional republic would have none of that).
These sick bastards have actually created figurative legal duplicates of all of us, that mark YES we are U.S. citizens on all those government forms and live at addresses with *federal* ZIP codes and two-digit State codes like CA, WA, FL and so on (versus the Union state abbreviations which are Ca/Cali., Wa/Wash., Mn/Minn., etc.) that exist in the 4D — not real — and have all these legislative statues and codes limiting the freedoms of their subjects, aka citizens. The movement and ability to live life according to the tenets of the Constitution and Bill of Rights has been stripped from anyone who states they are U.S. citizens.
The good news is, you can all declare your true Citizenship, but this means giving up your government benefits. They get you with the benefits and most people stay because of the benefits, giving up their ability to freely live life and pursue liberty and happiness.
The question is, what’s important to you? A gilded cage where you’re fed and housed or freedom and self-reliance?
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October 29, 2009, 10:49 pmsharpinchitown says:
An excellent document explaining the above is titled The U.S.A The Republic, Is The House No One Lives In
http://famguardian.org/Subjects/LawAndGovt/Citizenship/USARepublic/usa.htm
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October 29, 2009, 10:57 pmBrad says:
Also, be away that sure your communications between your desktop mail client and your mail server MAY be protected (to some extent) by SSL (SSL2 can be broken) HOWEVER once your mail server receives the message that’s the end of the line for your “protection”. It is simply client > server encyption. Once your server has the message it then needs to send it onto the recipent’s mail server, all over unencrypted networks. The only way to ensure your privacy from point A to B is to encrypt your message with strong encryption.
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October 29, 2009, 10:58 pmStephan Wehner says:
One should not use email for important documents, unless using encryption! How would this work out with hushmail.com (they encrypt user’s emails)?
We’re currently working on encryption for loggingit.com so that only users can read their (private) log messages — and nobody else, not even the operator of this online service (The Buckmaster Institute, Inc).
Stephan
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October 30, 2009, 12:34 amGene Madison says:
We also have to keep in mind that the Constitution (as well as the Bill of Rights) does not Constitute people, it Constitutes Government. It made very clear that no power was ever delegated upon Congress giving Jurisdiction over the people of the states, or any jurisdiction whatsoever within that State.
Having federal laws that work within the states jurisdiction, establishes Double Jeopardy, nullifying both.
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October 30, 2009, 1:24 amBob says:
“When a person uses the Internet, however, the user’s actions are no longer in his or her physical home; in fact he or she is not truly acting in private space at all.”
So i am not in my home right now typing this? LOL so if none of us are at home doing anything we may as learn hacking since it can never be proven we are at home doing it.
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October 30, 2009, 3:18 amGregory says:
By this logic, then there is NO such thing as Hacking. As with garbage deposited by the side of the road, if the POLICE are free to go through it ....... SO IS ANYBODY.
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October 30, 2009, 6:36 amHugh G Rekchun says:
Does this mean that if we can get our hands on government emails we’re free to read it?
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October 30, 2009, 12:31 pmPeter Roman says:
I don’t understand why phone conversations, which take place on third party hardware and can be accessed by employees of the third party if they wish (especially as more and more phone conversations are digital) receive 4th Amendment protection but similarly structured email does not.
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October 30, 2009, 1:29 pmNorm says:
Simple. E-mail is not the same as regular mail. Nor as a telegraph. Seems reasonable to have new rules.
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October 30, 2009, 9:26 pmRob Clark says:
Since most communication is electronic these days, and this will become even more the case, effectively this ruling says that (due to judge-created doctrine from before the Internet existed) the Fourth Amendment is effectively a nullity unless you are a neo-Luddite who refuses to use the Internet.
Further, this endangers a great deal of attorney/client communication which, due to the no notice requirement, will simply be turned over along with everything else. I have heard that attorneys are permitted to use email according to ethics rules, and that it does not show a lack of diligence in preserving the privilege. However, if cops can just paw through anything electronic, that is pretty questionable.
I don’t believe the third party doctrine can be reconciled with a meaningful Fourth Amendment, and I believe that applied as it is in this case, it is deeply inconsistent with the meaning and purpose of the right.
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October 31, 2009, 6:06 pmoathtofreedom says:
This is all about money again. It is illegal if our mail gets tampered with, if a delivery person decides to keep our mail, or if someone actually steals our mail. This is a federal offense. They have allowed people to pay bills online/thus sidelining the need to send in bills through the post office. If using electronic means for communication, to pay bills, register your vehicle and pay taxes is acceptable, then they’ve justified the means of using electronic devices to conduct official business. You can’t take half of one and leave the other. This judge’s ruling is BS. Unless they plan on stopping all official business through use of the internet, this ruling has no weight.
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November 1, 2009, 11:49 amAre we naked in the cloud? | stream4.me says:
[...] reader sends in a link to this recent post by law professor Orin Kerr, on a ruling about how 4th Amendment protections against [...]
Outsourcing: The Legal Implications « Pat’s Daily Grind says:
[...] allowed to notify the owner.” (‘it’ being this decision, blogged about here and [...]
Links 02/11/2009: New Distros Benchmark, Firefox 3.6 Beta | Boycott Novell says:
[...] District Judge Concludes E-mail Not Protected by Fourth Amendment (But See Correction) The issue in the case is whether the government must notify a person when the government obtains a search warrant to access the contents of the person’s e-mail account. Judge Mosman concludes that Rule 41 and 18 U.S.C. 2703(a) require the notice to be served on the ISP, not the account holder, as a statutory matter. He then rules that there is no constitutional requirement of notice to the account holder because the Fourth Amendment does not apply to the e-mails under the third-party doctrine. [...]
Technically Legal » Blog Archive » Technically Legal Podcast: Episode 23 says:
[...] Gmail and the Constitution The opinion District Judge Concludes E-mail Not Protected by Fourth Amendment (But See Correction) Stored Communications Act Federal Rule of Criminal Procedue [...]
Roy Schestowitz (schestowitz) 's status on Tuesday, 03-Nov-09 09:14:49 UTC - Identi.ca says:
[...] http://volokh.com/2009/10/28/district-judge-concludes-e-mail-not-protected-by-fourth-amendment/ a few seconds ago from kdemicroblog [...]
The People’s Campaign for the Constitution Blog » Blog Archive » The Constitution and the Internet says:
[...] Oregon, Federal Judge Michael Mosman handed down an opinion that suggests email is not protected by the Fourth Amendment because of its use of third party [...]
Privacy and Cloud Computing « Jacob Kramer-Duffield thinks says:
[...] smart to say that he doesn’t say already. But, here it is: A reader sends in a link to this recent post by law professor Orin Kerr, on a ruling about how 4th Amendment protections against [...]