
Prosecutors Are Reading Emails From Inmates to Lawyers - growlix
http://www.nytimes.com/2014/07/23/nyregion/us-is-reading-inmates-email-sent-to-lawyers.html
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Teodolfo
Bar associations should demand that lawyers allow clients encrypted email
communication. The adoption problem for encrypted email (all encrypted
controlled by the client machine using open source software so google or
whoever doesn't also have access to the plaintext) is so hard because it takes
BOTH parties to keep communication secure. If all lawyers had to do this,
people would become much more aware and maybe demand their medical and tax
information sent over email also be encrypted.

~~~
Fuxy
Encryption should be mandatory for all sensitive data if it's not encrypted
it's public.

However judges allowing the emails to be read sounds really stupid to me it's
obviously protected by the attorney-client privilege.

Most obvious breaches in law are motivated by prosecutors as a lack of staff
or convenience these days.

I don't care how understaffed you are or how inconvenient it is that is the
law and you have to follow it or at least that's how it should be but
apparently judges can choose which laws they want to follow.

PGP would be great in this situation, your attorney could give you a USB stick
with the public and private keys encrypted by a password of your choice and
you could use it to send messages to him.

Even if the warden or guards were to confiscate the USB stick they still
wouldn't be able to decrypt the messages without the password which is
protected by law because it's something only you know.

And because of how PGP works the messages sent by you to your attorney can
only be decrypted by his private key. Once encrypted even you can't decrypt
them anymore since you are using his public key to encrypt the message.

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jroes
I was listening to NPR recently and there was an interview with a former
Clinton administration official [1] who mentioned almost in passing that
prosecutors regularly infringe on the right to privileged conversation between
a defendant and their lawyer. Specifically, he mentioned that the room you are
given with your lawyer has paper thin walls that the police and prosecutor
folks can hear through easily, and when in jail there is no way to have a real
private conversation with your lawyer as well.

[1] [http://wfae.org/post/webb-hubbell](http://wfae.org/post/webb-hubbell)

~~~
jpatokal
I'd hope that's not admissible as evidence in court though, while in this case
the emails would apparently be.

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defilade
Think of it this way: you're in jail and you're talking to your lawyer about
what he thinks the prosecutor's strategy will be, and how he's going to defend
you against it. That has nothing to do with evidence admissibility but could
still be damaging to your case if the prosecutor finds out about it.

~~~
saraid216
That's roughly equivalent to discovering the identity of someone on the
internet who you're arguing with and using it to "win" the argument.

~~~
withdavidli
Why do you think this is roughly equivalent?

It's not about knowing the identity of the person, it's knowing how they are
going to proceed in arguing their case. Setting up an argument takes a lot of
time, it's their strategy for winning a case / defending their client. Knowing
this beforehand will put one side at an advantage in preparing their case and
specifically aim at any faults in arguments.

Also why is "win" in quotes? There's generally no winners in flame wars, but
in a court of law decisions are made on who wins and loses unless there's a
mistrial/deals being cut by both sides. So being able to concentrate efforts
directly preparing against a known strategy that the opponent is using is a
big advantage.

~~~
saraid216
> Also why is "win" in quotes?

Because,

> There's generally no winners in flame wars

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YokoZar
Wikipedia tells me that both of the judges that ruled emails are unprivileged
were born in 1946. The judge who ruled against the government, however, was
born in 1955.

I don't think this is a coincidence. I'd be surprised if the former two judges
even used email at all.

~~~
anigbrowl
I really don't think that makes much difference. I'd be much more interested
in the judges' political affiliations. The notion that attorney-client
communications are privileged, regardless of medium, is not a new concept.

~~~
crdoconnor
IIRC some judges consider email to be something like a postcard or talking in
public.

~~~
rapala
In a way an unencrypted email is like a postcard. Anyone who gets their hands
on it can read it without "opening" anything.

~~~
e_proxus
In the same way an unencrypted telephone call is also like a postcard (or
posting a tape), but we still have laws protecting that information flow, like
the client attorney privilege.

What we are seeing now is just a power grab from governments and organizations
to have "novel" forms of communication classed as less protected so they can
reap the benefits of being able to intercept it. This is exactly how a legally
protected and democratic society breaks down.

There are only two ways to solve it. Either protect all forms of communication
without discrimination, or use or invent technology to prevent it being
possible in the first place (and not outlaw that technology). There are no
other ways.

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rtpg
>She seemed to take particular offense at an argument by a prosecutor, F.
Turner Buford, who suggested that prosecutors merely wanted to avoid the
expense and hassle of having to separate attorney-client emails from other
emails sent via Trulincs.

Would it be that hard to specify one e-mail address as a "priviledged address"
(with a signature from the lawyer about such) and filter out those? It's
really surprising how people can go to court and argue such claims.

~~~
spacemanmatt
That's why the judge felt insulted.

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diafygi
[http://youtu.be/WTPimUSIWbI](http://youtu.be/WTPimUSIWbI)

Attorney client privilege is one of the biggest fallouts from mass
surveillance. Earlier this year there was a legal hackathon at Mozilla where I
tried to make a product to help that.

~~~
NickSharp
Thanks for making that! Looks sweet, is it ready for use in the wild? (You
mention making it user friendly with a link...)

Are there other encryption-type solutions for this problem? Something usable
by people locked up in jail who may not be computer savvy.

I know a public defender who might be interested.

~~~
diafygi
Definitely not ready for prime time, but it works with links now (see the
example link in the video description).

However, it probably wouldn't be very useful for people in prison because it
requires each party to have a dropbox account.

Another project that might be relevant is miniLock, but it's still a ways away
from being ready.

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Natsu
> Especially since he is acting as a public defender in this case — meaning
> the government pays him at $125 per hour — Mr. Fodeman argued that having to
> arrange an in-person visit or unmonitored phone call for every small
> question on the case was a waste of money and time.

The juncture of these two factoids struck me as odd.

~~~
psutor
The article expects you to know that $125/hr is way below the normal rate for
a criminal defense attorney in a major city, which I would expect to start at
about $300/hr.

~~~
enjo
I'm a very well paid software engineer.. I apparently can't afford to hire a
qualified defender if I find myself in need. I figure a defense is a minimum
of 500 hours, so even at $300 that's $150,000. I have no idea where I get that
type of money from.

Our justice system is severely screwed.

~~~
rhizome
A 500 hour billing for defense would be pretty serious, so if that's going to
be a problem for you here's a heads-up to ixnay on the crime you're committing
that's going to require brand-new Supreme Court-favorable legal theories for
acquittal. That's over 3 months of 40-hour weeks dedicated to just your case.
I know lawyers bill like crazy, but still.

~~~
mrkurt
Avoiding crime isn't really an effective way to avoid needing a lawyer,
unfortunately.

~~~
rhizome
I wasn't trying to account for all crime everywhere, because after all there
are cases of mistaken/misattributed identity that are very time-consuming to
defend, but all in all it's a very good way to avoid 500 hours of lawyer.

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pessimizer
If inmates are allowed to email, and also allowed private communication with
their lawyers, why wouldn't they be able to have a registered lawyers' email
address not be monitored, or to be able to flag an email as privileged
_exactly in the way they do with postal mail?_

>Prosecutors once had a “filter team” to set aside defendants’ emails to and
from lawyers, but budget cuts no longer allow for that, they said.

They seem to know that it's wrong, they're just becoming more confident that
judges will let them do whatever they want.

I'd accept that inmates shouldn't be allowed to use the internet at all before
I'd accept that budget cuts have made it too expensive for prosecutors not to
use privileged communications in court.

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RexRollman
I worry for this country.

~~~
venomsnake
The executive, LE and intelligence have gone berserk, the congress is
paralyzed, courts make corporations more people than actual people and still
US is better place than anywhere on the earth.

~~~
noir_lord
> and still US is better place than anywhere on the earth.

Not really, this is a clear case of American Exceptionalism if unintentional.

I'd take Germany, Iceland, Sweden, Switzerland or the Netherlands over living
in the US if I had the choice.

~~~
venomsnake
I am not a US citizen and live currently in EU.

Europe is not big on the whole freedom of speech stuff.

~~~
saraid216
The US has freedom of speech, yes.

It doesn't bother making sure that you're alive to say it.

It doesn't bother making sure that you're capable of saying something
worthwhile.

So, yes. You have freedom of speech. It's just that most American speech is
pointless.

~~~
venomsnake
Compared to the terrible crimes of denying holocaust or denying communist
atrocities or drawing a swastika. Or the terrible - well pretty much every law
in UK (libel, knife carry, mandatory decryption).

I am an European, but we have a long way to go towards sanity. And with
obesity declared a disability I feel like we are moving away from it.

~~~
saraid216
The thing is that freedom of speech isn't all that important in the long run.
It's important, yes, but speech is the first, tiniest baby step in a very long
process towards change. To focus on it to the exclusion of all else is to no
different than silencing yourself.

Indeed, having speech and naught else is like a vent that lets off steam,
making change and better lives _harder_ to come by. It is the fool's
prerogative to speak his mind, but at the end of the day, the king is still a
king, and the fool is still a fool.

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Canada
"...budget cuts no longer allow for that, they said."

Is the amount of money being spent on prisons in the United States really
shrinking?

Honestly, I have no idea.

~~~
anigbrowl
I think it's more the amount of money bugeted for prosecutor's offices.
Normally things like this would go past a review attorney whose job is is to
separate privieleged communications from non-privileged and pass only the
latter to the prosecutors, but those are the bottom-rung jobs and the first to
go when there are budget cuts. Not many politicians are interested in the
legal problems of federal prisoners, standing up on this sort of issue is a
sure way to be labeled as 'soft on crooks' by your electoral opponents.

Chances are that this won't get fixed until a sufficiently high-level court
rules on it, at which point we'll hear a lot of whining about 'activist
judges' and so on. What a revolting development.

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xmstr
In most circumstances I am all for attorney-client privilege. But if you are
in jail or prison and provided a medium to communicate to the outside world
and that medium requires you to accept a consent to monitoring agreement
before each use, then you should have no expectation of privacy regardless of
whom the communication is with. The prison system has proper ways to initiate
secure attorney-client communication and these people failed to use it, that’s
their problem. However, I do think the law needs to be updated to allow for
secure email communication between the attorney and client, but until that
occurs they need to live within the confines of the law.

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bloggerbulk
Surely I believe here ... and I think we should work out on this.
[http://www.bloggerbulk.com](http://www.bloggerbulk.com)

