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.
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."
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."
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]
> I enjoy how your response to Spooner's criticism of the Constitution is to declare that the Constitution permits these invasive acts
I declare it because it's true, at least as the law stands right now. The Constitution doesn't just say whatever you want it to say. The fact that the actions are "invasive" doesn't mean they're unconstitutional.
Did you know that a lawyer in a civil litigation can use the power of the courts, through a subpoena, to obtain nearly any information or force nearly anyone to testify as long as it's relevant to a litigation? And that subpoena is enforced through the threat of contempt of court? This is incredibly invasive, yet it's a basic feature of our court system. From an 1802 Evidence textbook: "It is the undoubted legal constitutional right of every subject of the realm who has a cause depending to call upon a fellow subject to testify what he may know of the matters in issue and every man is bound to make the discovery unless specially exempted and protected by law."
The balance that has been struck in our system is not one where the protection of "privacy" trumps all other concerns. Indeed, the scale is heavily tilted the other way: the government, especially pursuant to a court order, has broad powers to seek out information subject to specific protections (4th, 5th amendment).
>The fact that the actions are "invasive" doesn't mean they're unconstitutional.
Perhaps, though that only reinforces Spooner's point. Given the repeated attempts to frame this as only an issue of explicit prohibition, I think that perhaps you're trying to counter an argument I'm not actually making.
Anyone who tries to make a claim of "unconstitutionality" -- or argue against someone making a claim of "constitutionality" -- is wasting their time. The Constitution means precisely whatever the people can be convinced it means, and that in turn is decided largely by a handful of individuals in power. If something as explicit as the Seventh Amendment's "twenty dollars" clause can be argued away, then anything can.
Sometimes, as is (slightly, temporarily) the case now, the people may find an act of the state egregiously wrong, and look for protection in the Constitution. Thankfully we have people like you to remind them that they are incorrect. From this the value of the Constitution is revealed: the imprimatur of legitimacy it provides to those in power when they commit otherwise illegitimate acts.
> Anyone who tries to make a claim of "unconstitutionality" -- or argue against someone making a claim of "constitutionality" -- is wasting their time. The Constitution means precisely whatever the people can be convinced it means
Seems to be a very good reason why persuasion based around "constitutionality" is not a waste of time.
> and that in turn is decided largely by a handful of individuals in power.
Well, no, its decided by what the people accept, which depends pretty much entirely on the arguments they are exposed to. Certain individuals in power in government and the media have some advantages in terms of inherent trust with some segment of the population on the issue, or just a bigger microphone, but those can be overcome. Even in states where the means of mass communication have been far more tightly controlled than they are in the US, "what the people can be convinced of" has often conflicted with what those in power want; preaching defeatism of the kind you are here is precisely the thing that serves to reinforce the power of the elites, which mostly comes from other people giving up.
>Seems to be a very good reason why persuasion based around "constitutionality" is not a waste of time.
Perhaps, but it's not a very good reason to engage in an argument with someone making positive claims about "constitutionality" (e.g., rayiner).
Personally, I'm disinclined to participate in a lie merely in the hopes of yielding a favorable outcome, particularly when doing so cedes the fundamental point of my position. I am content to simply note the lie.
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.
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.
As a European, I'm pretty impressed by it and the rest of the US legal system, notwithstanding its numerous faults. The US has been through a lot worse than this efore, and emerged better as a society; the NSA processing data in bulk in nothing compared to, say, McCarthyism and the Red Scare.
>I enjoy how your response is not to engage with any of Rayiner's actual arguments
True, though in precisely the same way his response was not to engage with any of Spooner's actual arguments. I am perfectly willing to yield every one of rayiner's positive claims; they only provide more fodder for the rejection of state legitimacy on normative grounds.
Sure, but in a country of 300 million there will always be people who can make that argument about a constitution that forms any system of government. "Oh no, this government sucks and the constitution either authorized it or failed to prevent it from happening, ergo the constitution also sucks!"
I'm not even sure you could find even 3 people who agree on absolutely every single minute detail of how best to form a government (oh, and whose opinions never diverge over time).
After all, if you could do that why would you even need to hold elections at all, if everyone always agreed there'd be practically no need to have decision makers anyways.
But you still run into the fact that when authorities listened in on the call by a specific individual (by a manually enabled/disabled microphone) on a public phone booth, the Supreme Court held that the individual was protected, not the place and therefore when he entered a phone booth and closed the door evesdropping (by wiretapping or just a microphone) was a 4th Amendment search. See Katz v. United States.
Yes, that's exactly why I mentioned that emails under the suspect's own custody would be protected.
As I understand the law at the time, if the phone company themselves had happened to record the conversation and voluntarily chose to divulge it to the government there would have been no crime, and the evidence would have been admissible.
The 4th Amendment applies to the government, not to third parties, and this is why the government has had to pass laws strengthening privacy protections, even after the Katz decision.
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.
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.
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.
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.
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.
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.
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.
It has nothing to do with the details of the technology, and everything to do with expanding government powers. They saw a new area in which the laws weren't established yet, and they established such laws that suit them most, and since nobody was watching them at the time, they got all the access they wanted. It it makes no sense to you, it's your problem, not theirs - you lost, they won.
They probably just skipped Vista to save the tax payers a little money, that picture was in 2010. Imagine the headline "Whitehouse wants to spend XX millions upgrading to MS Vista. Is our money being spent wisely?"
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.
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.
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.
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.
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.