Feds Need Warrant to Read E-Mails, Appeals Court Says

[Newsjock]

Source: PC Magazine

An appeals court ruled Tuesday that the government must obtain a warrant before it can access e-mails stored by Internet service providers.

The government violated Steven Warshak's Fourth Amendment rights when it obtained his e-mails without a warrant, but it did so in good faith, so the evidence will not be thrown out. Warshak is still responsible for a $44.9 million money laundering judgment, but his 25-year sentence will be re-evaluated, according to the US Sixth Circuit Court of Appeals.

"It follows that e-mail requires strong protection under the Fourth Amendment; otherwise the Fourth Amendment would prove an ineffective guardian of private communication," the court ruled.

... Warshak appealed and argued that the government violated his Fourth Amendment rights when obtaining his e-mails from his ISP. The government said it relied on the good faith provisions of the Stored Communications Act (SCA), which allows the government to obtain certain electronic communications without procuring a warrant.

On Tuesday, the appeals court found that "the government did violate Warshak's Fourth Amendment rights by compelling his Internet Service Provider ('ISP') to turn over the contents of his e-mails. However, we agree that agents relied on the SCA in good faith, and therefore hold that reversal is unwarranted."

Read more: http://www.pcmag.com/article2/0,2817,2374341,00.asp

[ladjf]

1. Is there no limit to how intrusive the Feds wish to be? nt

[Whoa_Nelly]

2. Gwarsh, Mickey! And here Ah done thunk that there Patriot Act made it A-OK!

at least that was what I thought those expanded powers meant during the Bush Regime :eyes:
..and was pretty sure that hadn't changed, despite protest and challenge, even after Obama took office.

http://www.wired.com/threatlevel/2009/05/fbi-use-of-patriot-act-authority-increased-dramatically-in-2008/

FBI Use of Patriot Act Authority Increased Dramatically in 2008
By Kim Zetter May 19, 2009 | 2:34 pm | Categories: Surveillance, The Courts


FISA-court authorizations for national security and counter-terrorism wiretaps dropped last year by almost 300, a new Justice Department report to Congress shows. But the FBI’s use of “national security letters” to get information on Americans without a court order increased dramatically, from 16,804 in 2007 to 24,744 in 2008.

The 2008 requests targeted 7,225 U.S. people.

<snip>
National security letters (NSL) are written demands from the FBI that compel internet service providers, credit companies, financial institutions and others to hand over confidential records about their customers, such as subscriber information, phone numbers and e-mail addresses, websites visited and more.

NSLs have been used since the 1980s, but the Patriot Act expanded the kinds of records that could be obtained with an NSL. They do not require court approval, and come with a built-in lifetime gag order. With an NSL, the FBI need merely assert that the information is “relevant” to an investigation, and anyone who gets a national security letter is prohibited from disclosing that they’ve received the request.

[PoliticAverse]

3. So you can violate someone's constitutional rights...

if you do it in "good faith".

[davidthegnome]

5. That was my thought too

How can that be done "in good faith"? Like, oops we thought it was legal but it turns out it isn't? Whoopsie?

[Igel]

6. Precisely.

They thought it was legal, given the text of legislation, and it was later decided that the legislation was unconstitutional.

But if it's a violation of the defendant's right, penalties come into play. One solution is to throw out all the evidence and any evidence based on that evidence. In punishing the FBI, that would mean letting a felon free to either profit from his crime or continue his crimes. As is sometimes the case, the police punishment doesn't hurt the police but stands to hurt members of the public.

But what to do when a warrant would have been issued and the evidence gathered legally except that the FBI (and the courts) believed it didn't need a warrant and simply didn't bother to file, but now has corrected its error? The evidence gathered would have been admissible, minus rights-protecting paperwork. Consequently later evidence would have been admissible. Punishment doesn't chasten the FBI, who's effectively changed its sinful ways; punishment of the FBI helps the felon, who would have been proven guilty; and punishment might also put the courts precisely in the position of protecting a bad guy so that he can hurt the innocent.

Punishment is best when it either rehabilitates the criminal, compensates the victim, or at least removes the benefit derived by the criminal from the crime. In punishing the "criminal" FBI there's no rehabilitation, the victim is actually a felon whose victims also deserve justice, and punishing the FBI might allow ill-gotten gains to be enjoyed at leisure. Punishment's probably not proper here.

So they're splitting the difference: They'll reconsider not the verdict but the sentence.

[davidthegnome]

10. Thank you

That was very informative. So much law is like Greek to me, but you summed it up very well.

[PoliticAverse]

14. It's precisely...

this logic that results in the government increasingly ignoring constitutional rights.

[No Elephants]

32. The "forbidden fruits" exclusionary rule almost always"punishes" the public, not law

enforcement. Nonetheless, it was thought necessary in order to preserve the 4th amendment, erosion of which is a much greater danger to the public than one more criminal (among many) being on the loose until his or her next crime.

http://en.wikipedia.org/wiki/Exclusionary_rule

[ixion]

40. Yep, just like when they murder people it's "unfortunate"

same under-lying sense of lawlessness.

[OnyxCollie]

4. K&R. nt

[L0oniX]

7. Feds and "good faith" is a contradiction.

[24601]

9. Might do to remind you that Russ Feingold is, until 4 Jan 2011

anyway, is a "Fed." So is POTUS, VPOTUS, Federal Judges & Justices, all members of Congress (Even if they were impeached & convicted as a judge) and all the way down to the most junior in government. I'll partially agree with you in that Private Manning is as corrupt as they come.

[L0oniX]

11. ??? Private Manning???

[24601]

13. What, you thought he worked for the state or local government?

Last time I looked, DoD was part of the "Feds."

It wasn't me that posted, 'Feds and "good faith" is a contradiction.' I'm just clarifying some of who fit the "Fed" category.

[No Elephants]

33. Private Manning is the first federal wrongdoer who leaps to your mind? What a hoot.

[24601]

42. Not in the least was he the 1st. Alcee Hastings has that spot. But

you already knew Manning wasn't my 1st as you are always attributing your words to others.

[ixion]

38. Yep, and they're all corrupt to a greater or lesser degree

every last one of them.

[Downwinder]

8. We violated the Fourth Amendment. So what, we are the Government.

[struggle4progress]

12. ... The story behind the case goes back to 2006, when the Feds gained access to e-mail belonging to

Steven Warshak, the man behind the "natural male enhancement" product Enzyte. At the time, Warshak had already incurred the wrath of the FTC, which said that there was no evidence that his products worked and found that his company routinely signed up callers for a monthly subscription plan that was difficult to cancel. Soon the FBI and the Postal Inspectors got on Warshak's case for mail and wire fraud as well.

The government was able to gain access to Warshak's e-mail thanks to a court order—a move that requires a significantly lower burden of proof than a full-on warrant. Warshak pushed back on the grounds that the search violated his Fourth Amendment rights. The Sixth Circuit Court of Appeals eventually ruled in Warshak's civil case that his e-mail was indeed Constitutionally protected and that the ability to get the court order without notification was no longer allowed.

Although that previous ruling from the appeals court still stands, the latest decision is related to Warshak's criminal case (he was convicted in 2008 on 93 counts of conspiracy, fraud, and money laundering, and received a 25-year prison sentence). The Sixth Circuit once again agreed that a warrant is necessary before the government can access a citizen's e-mails through an ISP ...

Appeals court: warrant required before Feds can read e-mail
By Jacqui Cheng | Last updated December 14, 2010 3:32 PM
http://arstechnica.com/tech-policy/news/2010/12/appeals-court-warrant-required-before-feds-can-read-e-mail-mail.ars

[cory777]

15. Warrant Needed to Get Your E-Mail, Appeals Court Says

Source: Wired

The government must obtain a court warrant to require internet service providers to turn over stored e-mail to the authorities, a federal appeals court ruled Tuesday.

The decision by the 6th U.S. Circuit Court of Appeals was the first time an appellate court said Americans had that Fourth Amendment protection.

“The government may not compel a commercial ISP to turn over the contents of a subscriber’s e-mails without first obtaining a warrant based on probable cause” (.pdf), the appeals court ruled. The decision — one stop short of the Supreme Court — covers Kentucky, Michigan, Ohio and Tennessee.

Kevin Bankston, a privacy attorney with the Electronic Frontier Foundation, applauded the decision.

Read more: http://www.wired.com/threatlevel/2010/12/fourth-amendment-email/

---

Uncensored Activist News http://activistnews.blogspot.com/

[villager]

16. Wow. The Hope & Change folks won't like that.

I guess we can expect an appeal.

[boppers]

20. We should appeal, to resolve the Circuit Split.

Right now, email is private correspondence (requires a search warrant) in some circuits, but a business record (requires a subpoena) in other circuits... it should be the same across all national jurisdictions.

[villager]

22. yes -- that "appealing good decisions" really worked out for DADT

Such cool chess moves!

[boppers]

23. Same problem as DADT.... different findings at similar levels.

Oh, and the law is not chess. Chess is so simple that we teach computers to do it.

If you don't want to continue to appeal DADT, you're endorsing its selective enforcement in some jurisdictions, and selective ban in others, rather than striking it down across all government jurisdictions.

[villager]

24. yes -- that "appealing good decisions" really worked out for DADT

Oh, and good law is not chess. Chess is rather cold and heartless.

Letting a bad law get struck down is good policy.

[boppers]

27. It's worked out so far.

Tell me who has been fired since the last ruling.

Name a single one. Just one.

[villager]

28. It hasn't worked out so far.

Tell me one gay service man or woman who is comfortable coming out, since the appeal of the last ruling, which kept DADT in place.

Name a single one. Just one.

[boppers]

30. Point made.

Well done.

[villager]

41. that's kind of you to say, boppers.

It's a shame that we too often come to loggerheads on this site over getting Democratic administration to do the right thing on expanding basic civil rights, and protecting the ones (the few?) we still have...

[No Elephants]

35. Not really. In the event of a split in the Circuits on DADT (is there one), you appeal only the

decisions you disagree with, pursuant to your oath to uphold the Constitution.

And please do not reply D of J MUST fight for laws of Congress. It has no such obligationa and doesn't always do so. It does, however, have an obligation to uphold the Constitution of the United States, which is superior to a law of Congress in any event.

[No Elephants]

34. Doesn't sound right and you are not distinguishing between spying secretly,

with or without a warrant, and issuing a subpoena to a business to produce its own records in court.

No way an email about a family matter I send to a family member's personal email addresson my own time from my home on my own computer is a business record in any Circuit.


Also, a business record is a record a company keeps in the ordinary course of its business. Such records are admissible as evidence as an exception to hthe hearsay rule brcause they are considered reliable--"evidence worthy." Hence, businesses are often compelled by subpoena to produce their records in ccourt. However, a business is obviously aware of this and may fight such subpoenas on a variety of grounds (trade secret being an example of grounds to fight a subpoena). And, absent valid grounds to protest a subpoena, a business has no reasonable expectation of privacy in its business records.

When law enforcement spies secretly on my personal emails to a family member that have nothing whatever to do with anyone's business enterprise, considerations are very different.

Issues are also different, though not as different, when law enforcement spies on a business, with or without a warrant from a court, versus when a court issues a warrant to a business owner to produce his, her or its business records as evidence3.

[emilyg]

17. As should be,

[sakabatou]

18. So where were these guys during the Bush years?

[boppers]

21. This case started in the Bush years, actually.

Back in 2006 was when this started. Remember the annoying "Smiling Bob" "male enhancement" commercials? Turns out the company was taking your credit card number, and automatically billing you every month, refusing to give refunds unless you sent in an affidavit from a medical doctor that you had a small penis, which wasn't getting any bigger (Seriously, it was that bad).

112 counts in his indictment and a trial later (guilty on 93 counts), he was sentenced to 25 years in jail, $93,000 in fines, and to forfeit $500 million he had in assets (it was a quite lucrative scam).

Leading up to the raid, the government asked his ISP to collect copies of his emails (per the Stored Communications Act), some 27,000 were collected in the investigation, and were used as evidence, after they were subpoena'ed by the prosecution.

[boppers]

19. If you're running a male-enhancement pill scam, the government needs more than a subpoena now.

Lots of interesting background on this case.

[No Elephants]

36. Apparently, it needed to violate the Fourrth Amendment.

[MilesColtrane]

25. I'm sure the NSA has their own data storage facility.

Since they started intercepting and combing through AT&T traffic in real time seven years ago, I'm sure they've kept the most "interesting" bits on their own equipment and don't need to turn to the telecoms and a judge.

[boppers]

31. Nobody builds a "facility". That's insane.

You need to have multiple facilities, for redundancy, and for keeping data loads (and costs) down, you site near the points where it's legal for you to gather data.

Oh, and your estimate of 7 years is... funny!

[defendandprotect]

26. k

[progressoid]

29. Not a problem.

I'm sure there is always a cooperative judge ready to stamp "appproved" on a warrant.

You know, for national security sake. :eyes:

[No Elephants]

37. Sure, but at least granting of a warrant by a court is a pair of

eyes other than law enforcement's--before the fact and is subject to appeal after the fact.

Following the Rule of Law does not guarantee us a perfect world, just a law-abiding society, run of, for and by we highly imperfect human beings.

[ixion]

39. so they need a warrant for email, but phone, sneak peak searches and groping

are a-okay. :eyes:

Some consistency would be nice.