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Petraeus case shows FBI's authority to read email

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Re: Petraeus case shows FBI's authority to read email

#11

Post by krickle »

gknoy wrote: post #10
SageRaven wrote: post #9

Earlier quoted context omitted.

You beat me to the punch. That act is 26 years old, and I've never before heard about his little provision in all my reading of discussions on email privacy. Time and time again, I think, "I should bite the bullet and register a domain name for 10 years to host my own email on, encrypting everything that makes it past the spam blocker." I know, I know. I'm not that interesting a person, especially to the federal gove…

How would that stop you from being required to comply with a subpoena to supply old email from sageraven.com (hypothetical)?

Presumably the Fifth Amendment, which still protects one from disclosing their password unless the prosecutors have a witness who has seen illegal material on your device.

Re: Petraeus case shows FBI's authority to read email

#12

Post by pyre »

gknoy wrote: post #10
SageRaven wrote: post #9

Earlier quoted context omitted.

You beat me to the punch. That act is 26 years old, and I've never before heard about his little provision in all my reading of discussions on email privacy. Time and time again, I think, "I should bite the bullet and register a domain name for 10 years to host my own email on, encrypting everything that makes it past the spam blocker." I know, I know. I'm not that interesting a person, especially to the federal gove…

How would that stop you from being required to comply with a subpoena to supply old email from sageraven.com (hypothetical)?

I imagine that it's easier to fight a subpoena directed at you than it is to fight one directed at Google (for example).

Re: Petraeus case shows FBI's authority to read email

#13

Post by cma »

cypherpunks01 wrote: post #4
adestefan wrote: post #2

Petraeus signed all kinds of paperwork that said it was okay for the government to go digging around in his personal life, including email. This is really a non-story.

As they looked further, the FBI agents came across a private Gmail account that used an alias name. On further investigation, the account turned out to be Petraeus's. The FBI broke into the gmail account (or at least subpoenaed identifying information from google) before they knew whose it was. So no, it's not a non-story.

Does Google actually require subpoenas?

Re: Petraeus case shows FBI's authority to read email

#14

Post by SageRaven »

gknoy wrote: post #10
SageRaven wrote: post #9

Earlier quoted context omitted.

You beat me to the punch. That act is 26 years old, and I've never before heard about his little provision in all my reading of discussions on email privacy. Time and time again, I think, "I should bite the bullet and register a domain name for 10 years to host my own email on, encrypting everything that makes it past the spam blocker." I know, I know. I'm not that interesting a person, especially to the federal gove…

How would that stop you from being required to comply with a subpoena to supply old email from sageraven.com (hypothetical)?

It puts me in control of the situation. As it is, an over-zealous prosecutor can get my ISP to comply. For personal systems, I assume that it would require an outright lawsuit/prosecution to force my hand to do anything. With competent representation, I assume it would need to be serious business and not a fishing expedition for them to get my email (should I comply at all).

And remember, passwords for crypto are still pretty much untested in (US) court. So far as I know, I currently cannot be forced to provide decryption passwords/keys for a court. Contempt might still be an issue, but that's another problem entirely.

Re: Petraeus case shows FBI's authority to read email

#16

Post by rayiner »

sethbannon wrote: post #8

The most disturbing bit from the article: "Under the 1986 Electronic Communications Privacy Act, federal authorities need only a subpoena approved by a federal prosecutor - not a judge - to obtain electronic messages that are six months old or older."

It's only disturbing because people think of e-mail as equivalent to the letters in their desk rather than what it is: putting private information into the hands of private third parties in cleartext. The ECPA actually gives you an extra layer of protection--requiring a warrant for messages less than six months old. Under the principles of the 4th amendment, you wouldn't even have this much protection. In general, you have no privacy interest in information you entrust to third parties. If your ISP turns over your e-mail just because the FBI asked nicely, without the ECPA that'd just be between you and your ISP.

I don't know why this surprises anyone. Prosecutors have broad powers to subpoena information in the hands of third parties. 4th amendment doesn't even apply.

Re: Petraeus case shows FBI's authority to read email

#17

Post by magicalist »

rayiner wrote: post #16
sethbannon wrote: post #8

The most disturbing bit from the article: "Under the 1986 Electronic Communications Privacy Act, federal authorities need only a subpoena approved by a federal prosecutor - not a judge - to obtain electronic messages that are six months old or older."

It's only disturbing because people think of e-mail as equivalent to the letters in their desk rather than what it is: putting private information into the hands of private third parties in cleartext. The ECPA actually gives you an extra layer of protection--requiring a warrant for messages less than six months old. Under the principles of the 4th amendment, you wouldn't even have this much protection. In general, yo…

That's only if you accept the current "third party doctrine" interpretation of the limits of the fourth amendment. There is nothing in the amendment itself to limit its protections in the way that they have been, and, in fact, these limits have not been enforced uniformly.

For instance, even though you make (or made) telephone calls in the clear over a third party network, the government cannot tap your phone calls without a warrant (and, in fact, protections were even expanded to tapping of public pay phones to target specific people in Katz v. United States).

The third party doctrine must be dropped by the courts or protections for things like email need to be made explicit by congress. However, the current interpretations favored by courts are not inherent to the fourth amendment.

Timothy B Lee does a great job blogging about this stuff on Ars Technica and elsewhere. Here's a good starting point if anyone wants one: http://www.techdirt.com/articles/20080530/2014171272.shtml

Re: Petraeus case shows FBI's authority to read email

#18

Post by rayiner »

magicalist wrote: post #17
rayiner wrote: post #16

Earlier quoted context omitted.

It's only disturbing because people think of e-mail as equivalent to the letters in their desk rather than what it is: putting private information into the hands of private third parties in cleartext. The ECPA actually gives you an extra layer of protection--requiring a warrant for messages less than six months old. Under the principles of the 4th amendment, you wouldn't even have this much protection. In general, yo…

That's only if you accept the current "third party doctrine" interpretation of the limits of the fourth amendment. There is nothing in the amendment itself to limit its protections in the way that they have been, and, in fact, these limits have not been enforced uniformly. For instance, even though you make (or made) telephone calls in the clear over a third party network, the government cannot tap your phone calls w…

In the legal sense, the third party doctrine is as inherent to the 4th amendment as anything can be--it's the Supreme Court's binding interpretation of the contours of the phrase "reasonable expectation of privacy."

In the practical sense, I strain to see how someone can have a reasonable expectation of privacy in say their e-mail when Google, Yahoo, Microsoft, etc, data-mine those communications in order to show targeted advertisements...

Re: Petraeus case shows FBI's authority to read email

#19

Post by maxerickson »

rayiner wrote: post #18
magicalist wrote: post #17

Earlier quoted context omitted.

That's only if you accept the current "third party doctrine" interpretation of the limits of the fourth amendment. There is nothing in the amendment itself to limit its protections in the way that they have been, and, in fact, these limits have not been enforced uniformly. For instance, even though you make (or made) telephone calls in the clear over a third party network, the government cannot tap your phone calls w…

In the legal sense, the third party doctrine is as inherent to the 4th amendment as anything can be--it's the Supreme Court's binding interpretation of the contours of the phrase "reasonable expectation of privacy." In the practical sense, I strain to see how someone can have a reasonable expectation of privacy in say their e-mail when Google, Yahoo, Microsoft, etc, data-mine those communications in order to show tar…

I certainly don't ever expect a data mining system to gossip.

Treating networked automatic systems like personal notebooks really isn't so terribly strained, there is no reason to expect a person is ever reviewing the data passed to them.

Re: Petraeus case shows FBI's authority to read email

#20

Post by magicalist »

rayiner wrote: post #18
magicalist wrote: post #17

Earlier quoted context omitted.

That's only if you accept the current "third party doctrine" interpretation of the limits of the fourth amendment. There is nothing in the amendment itself to limit its protections in the way that they have been, and, in fact, these limits have not been enforced uniformly. For instance, even though you make (or made) telephone calls in the clear over a third party network, the government cannot tap your phone calls w…

In the legal sense, the third party doctrine is as inherent to the 4th amendment as anything can be--it's the Supreme Court's binding interpretation of the contours of the phrase "reasonable expectation of privacy." In the practical sense, I strain to see how someone can have a reasonable expectation of privacy in say their e-mail when Google, Yahoo, Microsoft, etc, data-mine those communications in order to show tar…

> In the legal sense, the third party doctrine is as inherent to the 4th amendment as anything can be--it's the Supreme Court's binding interpretation of the contours of the phrase "reasonable expectation of privacy."

Not really, because it has only been applied (and kept from application) piecemeal. Warrants required for wiretaps is one good example of where the Supreme Court has said the third party doctrine does not hold. The 6th circuit has actually ruled that email (even if older than six months) is protected by the 4th amendment. That's why many are hoping the supreme court will take up the case, or congress will amend the Stored Communications Act to clear up the inconsistencies.

6th Circuit:

Given the fundamental similarities between email and traditional forms of communication [like postal mail and telephone calls], it would defy common sense to afford emails lesser Fourth Amendment protection.... It follows that email requires strong protection under the Fourth Amendment; otherwise the Fourth Amendment would prove an ineffective guardian of private communication, an essential purpose it has long been recognized to serve.... [T]he police may not storm the post office and intercept a letter, and they are likewise forbidden from using the phone system to make a clandestine recording of a telephone call--unless they get a warrant, that is. It only stands to reason that, if government agents compel an ISP to surrender the contents of a subscriber's emails, those agents have thereby conducted a Fourth Amendment search, which necessitates compliance with the warrant requirement.

https://www.eff.org/deeplinks/2010/12/breaking-news-eff-vict...

> In the practical sense, I strain to see how someone can have a reasonable expectation of privacy in say their e-mail when Google, Yahoo, Microsoft, etc, data-mine those communications in order to show targeted advertisements...

We're talking the government here, not companies. You can agree to all sorts of things that the government can't compel you to do. I'm not sure how this is relevant.

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