Archive for November, 2012

The 4th Amendment and Email

Tuesday, November 20th, 2012

Tonight there was an interesting broadcast of To The Point examining email privacy rights and the 4th amendment, with reference to the recent warrantless FBI investigation resulting in the resignation of David Petraeus as the director of the CIA. The program also featured Declan McCullagh, author of this piece on c|net.

The judicial system has long held that the government requires a warrant to open your mail. And in the 60s, it caught up to telephone technology when it ruled that wiretap warrants actually require a higher burden of proof than a regular “physical search” warrant, because they constitute an ongoing, secret eavesdropping. But the law has not yet caught up with email technology – the government can still peruse emails without a warrant.

This is obviously detrimental to privacy, and something all liberty-minded folks are against. And, it was claimed in the show, large technology companies (Google, Facebook et al) are in the camp that the government shouldn’t be allowed to mine email accounts without due process. But ISTM that it’s not that simple for the 3rd party companies. Because the very same legal interpretation that means that the government doesn’t require a warrant, protects them.

If emails are public records (as they are currently, so the argument for defence of warrantless email access goes), then 3rd parties have no particular responsibility to keep them private. (According to the discussion on To The Point, emails are protected at the instant they are travelling across the wire, but when stored they count as public.)

On the other hand, if emails are private, then the government can’t access them willy-nilly, but presumably that imposes extra responsibilities on the 3rd parties. Which may not be something that Google, Facebook et al want. Can they in good conscience make the argument that the government shouldn’t be allowed access, but they should be able to mine data for advertising or selling on? I think not.