
The Insane Law That Lets Authorities Read Any Email Over 180 Days Old - elleferrer
http://www.businessinsider.com/when-can-the-government-read-your-email-2013-6
======
mpyne
Actually it wouldn't let authorities simply read emails transmitted to a
server under the suspect's control (assuming no intermediary copies are kept
by a man-in-the-middle type of scenario).

Whether people _like_ it or not, rayiner is right on target with what the law
says about privacy rights. It isn't that emails can be read because a law was
passed to strip their privacy, emails can be read because a law _hasn 't_ been
passed to strength privacy controls on email.

The same issue occurred with telephones, beepers, cell phones, and more. They
were considered fair game in many scenarios until specific laws were passed to
make tapping them illegal and require warrants/wiretaps.

~~~
ataggart
I am reminded of the words of Lysander Spooner [1]:

"[T]he Constitution is no such instrument as it has generally been assumed to
be; but that by false interpretations, and naked usurpations, the government
has been made in practice a very widely, and almost wholly, different thing
from what the Constitution itself purports to authorize. ... But whether the
Constitution really be one thing, or another, this much is certain --- that it
has either authorized such a government as we have had, or has been powerless
to prevent it. In either case, it is unfit to exist."

[1] [http://lysanderspooner.org/node/64](http://lysanderspooner.org/node/64)

~~~
rayiner
There isn't a necessity for false interpretations or naked usurpation here. If
the Constitution said: "Congress shall pass no law... abridging the right of
privacy" we'd be in a different boat. But that's not what it says. It just
doesn't contemplate the kind of broad privacy right that attaches to
information even as it flows in clear text through numerous computers on the
internet. That's not surprising--the 4th amendment was specifically a response
to the British government's invasive searches of peoples' houses.

Indeed, the Supreme Court's position over the last 50 years has been "reading
in" privacy rights in an ad hoc way. If there was a broad right of privacy in
there, either explicitly in the text or implicitly in historical practice and
understanding, don't you think the liberal Supreme Court's of the 1960's and
1970's that gave us Roe, etc, would have found it instead of having to resort
to "penumbras"?

Remember, striking down the actions of the political branches on the basis of
unconstitutionality is a subversion of democracy. Sometimes it's necessary,
but it's always a subversion of democracy. Calling everything we disagree with
"unconstitutional" as ideologues are wont to do, is basically just saying "I
hate the political consensus so my ideals should override the voters'
decisions."

~~~
ataggart
I enjoy how your response to Spooner's criticism of the Constitution is to
declare that the Constitution permits these invasive acts.

>If the Constitution said: "Congress shall pass no law... abridging the right
of privacy" _we 'd be in a different boat_.

No we wouldn't.[1] We'd still have some people[2] coming along and making
whatever arguments are needed in order to preserve and expand the state. One
way might be to constantly frame government power only in terms of explicit
limits, with the default being otherwise unchecked power. Such limits can then
be read to mean whatever those in power wish them to mean.[3]

[1]
[http://en.wikipedia.org/wiki/Schenck_v._United_States](http://en.wikipedia.org/wiki/Schenck_v._United_States)

[2]
[http://www.youtube.com/watch?v=znQe9nUKzvQ](http://www.youtube.com/watch?v=znQe9nUKzvQ)

[3]
[http://faculty.msb.edu/hasnasj/GTWebSite/MythWeb.htm](http://faculty.msb.edu/hasnasj/GTWebSite/MythWeb.htm)

~~~
anigbrowl
I enjoy how your response is not to engage with any of Rayiner's actual
arguments and instead try to turn it into a character issue. If you look at
the history of American law you'll find that historical scope of the 4th
amendment and similar was always a lot narrower than most people today
conceive it to be.

In a broader context, it's particularly instructive to look at the history of
Shays' Rebellion, which took place a mere decade after the founding of the US;
the people running the government at the time, including founders such as John
and Samuel Adams had no hesitation on dropping the banhammer on the rebels, to
the point of suspending _habeas corpus_.

The Constitution was most certainly _not_ written with the intention of
producing weak government. Like it or not, it invests the federal government
with far-reaching powers, and such limits as it does put in place are partly
to limit the Federal government's authority over the states, as opposed to
individuals.

~~~
jeremy6d
So much the worst for the Constitution. What has it done for us lately?

~~~
rayiner
The U.S. is awesome. I bet there is literally a handful of countries your
average HN-er would rather live in than the U.S., and before the economic
liberalization of Europe in the 1990's, it was probably less than that. Our
prosperity has been supported by an incredibly stable government, one that is,
224 years after its founding, freer than it ever has been (read up on the
Alien and Sedition Acts).

It's easy to take what we have for granted, but it's important to maintain
perspective. The cause of the republic is not served by those who declare it
hopelessly broken and disengage. In the light of historical perspective, you
realize that there have been many times in the past when the government was
more corrupt than it is now, when society was less free than it is now, and
that's a liberating thought because it means that the trend of government does
not point inevitably towards corruption and repression.

------
rayiner
Hint: lots of people can read your e-mail because e-mails are transmitted in
clear text over potentially numerous intermediate SMTP servers.

Protocol not designed to protect privacy does not protect privacy: news at 11.

~~~
smsm42
The point is not encryption. The point is that the govt considers any stored
communication not have expectation of privacy. Hint: you bank records, health
records, credit card purchase data, etc. are also stored data at third-party
provider, so by the same logic the govt can declare it not be protected by 4th
amendment and thus be accessible without any warrant requirements. Since these
data also are communicated electronically, they technically are electronic
communications, and if they're stored beyond 180 days (as they universally
are), they are accessible without warrants. Big Brother is watching you.

~~~
rayiner
None of that information is protected by the 4th amendment, and never has been
(some of it is protected by statute). See: [https://ssd.eff.org/your-
computer/govt/privacy](https://ssd.eff.org/your-computer/govt/privacy).

The 4th amendment says: "The right of the people to be secure in their
persons, houses, papers, and effects..."

It does not say anything about your bank's, credit card company's, etc,
records _about_ you.

~~~
smsm42
This is very artificial distinction - almost all your personal data and all
"papers" is the data "about you". Treating email or medical record as public
knowledge without expectation of privacy just because it uses technical means
belonging to a third party makes no sense - why then phone calls are
protected, they use third party equipment too and can be very easily listened
to.

~~~
rayiner
Analogizing to phone calls is a bad way to understand the 4th amendment
because it's basically the product of a 1960's liberal court. It's a high
watermark. It's law, but shouldn't be the only source you use to understand
the meaning of the 4th amendment.[1]

The distinction between _your papers_ and other peoples' papers _about you_ is
not an "artificial distinction." Where I think you're going astray is the use
of the word "public." The 4th amendment doesn't protect all information that
you wouldn't want made public. It's narrower than that. Say you visit a
prostitute. She keeps a log of the date and length of each visit. That's
obviously not "public" information. But it's also not one of your "papers" or
"effects" because you neither generated that information nor are you in
custody of it. It pertains to you, but you don't get to invoke privacy
privileges over all information that pertains to you.

The same is true of bank records, credit card records, etc. When you entrust
other people with your information, you can't invoke the 4th amendment to keep
them from disclosing it, either voluntarily or pursuant to a subpoena.

[1] Also note that in the 1960's phones were analog devices with no storage
capability. When you talk about things like e-mail, which go through
intermediate servers and can be stored or copied by anybody in the chain, your
reasonable expectation of privacy in that information is very different than
what it might be for a 1960's style phone.

~~~
smsm42
I think with email expectation of privacy is exactly the same. And 4th
amendment, saying "papers", obviously does not mean "only something that is
never recorded can be private and protected from government". Obviously papers
are very permanent things.

In the same vein, then, mail should not be protected, since you give it to the
postman to send, so nothing prevents them from opening the envelope, reading
everything inside, copy it and tell the police. I don't see how this is any
different from taking emails from private email mailbox. In both cases I
expect only machines and people that need to read it for purposes of the
transmission to access it, and only in parts that are necessary for such
transmission to happen, and do not expect them to disclose it to anybody else.

~~~
rayiner
It's not the fact that e-mail is recorded. It's the fact that e-mail is
recorded and retained by third parties.

The mail example is interesting. A letter sent via FedEx or UPS is _not_
protected by the 4th amendment. Letters sent via the Post Office are
protected, because in that case the "third party" is actually an organ of the
government.

~~~
smsm42
By the same logic, if you rent a storage locker, it can be searched without a
warrant since it belongs to a third party. Or your rental house can be
searched, since you only rent it from the third party. And if you put your bag
in a taxi trunk, you just gave it to a third party, so if the police stops the
cab, they can search the bag without any probably cause. How does it make
sense?

I don't see the logic. If you give it to the government, you can expect
privacy from the government, but if you give it to somebody else, government
can take it? Makes no sense. It's like saying if you confess to the police
officer, he can not testify against you, but your own lawyer has to.
Completely opposite of what reasonable person would expect.

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MikeKusold
My biggest issue with this law is that it equates old emails to mail that is
being thrown out. I consider my archive to be more of a filing cabinet though.

This law was written when 15GB of email storage was unthinkable,and it needs
to be updated to stay with the times.

~~~
brigade
It predates IMAP, which should say everything.

------
gregschlom
OT: the computer on Obama's desk is running Windows XP.

Full-size image:
[http://www.flickr.com/photos/whitehouse/4753683646/in/set-72...](http://www.flickr.com/photos/whitehouse/4753683646/in/set-72157624332927216/lightbox&#x2F);

Maybe it's time for the White House to upgrade...

~~~
mitchty
It is almost 3 years old as far as an image goes. Where I work we only late
last year moved from XP to Windows 7.

Large organizations move slowly.

~~~
electromagnetic
For many reasons organizations move slowly. One being security. No large
organization, especially one handling sensitive information, is going to jump
into the first release of any software.

~~~
mitchty
No argument there, just providing a counterpoint on the XP->whatever else at
another large organization.

It isn't a quick thing because there is so much to be
checked/validated/tested/touched. I don't envy the admins that have to deal
with it.

------
kevincrane
The side-benefit of this shitstorm happening with the NSA and PRISM is that
people outside of the tech community are actually starting to hear about this
kind of stuff. This law should be common knowledge to a lot of people here,
but it's good to see that a few more mainstream sources are starting to raise
the issue as well.

------
einhverfr
Well the statute can't trump the Constitution. It isn't clear whether the 4th
Amendment requires a warrant even if statute does not. This is something that
the courts will have to work out. There are however many authorities on 4th
Amendment law including many I would not describe as civil libertarians who do
think that current precedent suggests that a warrant in fact would be
required.

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acchow
Please stop upvoting Business Insider until they improve they journalistic
standards. We harm ourselves by encouraging and funding these people.

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rilut
Even I deleted it? :/

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andyl
All this stuff has been known for awhile. Glad its finally getting some
attention - hope it lasts.

~~~
wcunning
There's a difference between seeing these stories in dribs and drabs all over
the place and seeing them all on here today. It's sort of the forest vs. the
trees, and I for one think that we're all starting to see the forest where we
once only saw individual trees. It makes me hopeful that there will be enough
outcry that there will at least be some slow down of political power-grab.

~~~
pressurefree
slow down? these people are talking out of their ass and all this shits up for
grabs...

