15 April 2010


In other news, the DOJ continues its relentless assault on the 4th amendment. Not content with using NSLs to seize financial or phone records without a warrant, we're now going after email, under the amusing logic that somehow "opened email" is not "stored email". I'm also a little confused as to how email, private correspondence, that exists in storage for over 180 days does not require, at least under this statute, a warrant to access. Seems like you would require a warrant to access this information if it were in the form of a letter, written from one person to another, since that's obviously what "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." refers to when it describes "papers, and effects". Email, given its modern status, sent through email providers rather than the post office, should carry the same privileged status of protection under this term. There might be less capable protections on things like blogs (at least those written with open identification) or facebook status and postings (though again, facebook allows for many privacy controls that should at least require some legal scrutiny and hoop-jumping like warrants when they are used), and maybe even chat rooms (but not instant or text messaging services), but email seems to qualify as the modern form of mail and correspondence and should therefore be applied the same level of privacy consideration from the state. The state should always have to demonstrate that it takes an interest in our affairs to us and for what purpose. One assumes that the nature of email, which can be stored on servers other than our own local computer backups of data, will be less amenable to protecting ourselves against legal charges, such as by deleting such data as we might burn incriminating effects like a letter, but it's still private data. Courts have ruled on this precedent by defending private telephone lines which are owned and operated by private (but government regulated) telephone companies, and requiring warrants for the wiretapping of such phones. Indeed, even a "public" payphone requires such controls over what may or may not be listened to, and thus become admissible in a courtroom, under a warrant. The fact that the phone call in effect travels through a public space does not matter because the importance of the 4th amendment, much like the 1st, is to protect any entity from such laws as would impede our liberties as free individuals. Consenting to a search with a legal requirement of a warrant is thus also a requirement when searching an incorporated business and its property, and further, protects the property of others by requiring the warrant to specifically list its targets for a search or seizure (which is itself somewhat broadly interpreted at times).

That we are somehow incriminated and absolved of this protection by merely opening such data and (possibly) viewing it for ourselves, is a ridiculous contortion, one which is rightly struck down by previous court decisions. Again, one would hardly make such a requirement of protection for written correspondence ("papers") that unopened letters are protected while opened letters are not. After already having the bombshell from a month ago that consumers would be appalled at the amount of data mined and requested by government agents from telecommunications companies, Yahoo and its allies here deserve some credit for trying to draw some line in the sand. Even if that line has already surrendered a great deal more than our Constitutional rights would have ordinarily granted protection against.
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