back to article No email privacy rights under Constitution, US gov claims

On October 8, 2007, the United States Court of Appeals for the Sixth Circuit in Cincinnati granted the government's request for a full-panel hearing in United States v. Warshak case centering on the right of privacy for stored electronic communications. At issue is whether the procedure whereby the government can subpoena stored …


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  1. Rick

    Thanks George Orwell

    For giving us advanced warning of what was coming. For all the advancements in technology it seems today that we have decided its better to let big brother take care of us rather then fend for ourselves. Both Animal Farm and 1984 both describe what seems to be taking effect today. Total power corrupts and Big Brother is watching. It's seems that in this new world that in order to save us from ourselves the goverment must monitor what we do and who we talk to. They seem to think that privacy is no longer an expectation but a luxury. Based upon these arguements made by them I can't any official document that has my name on it or information. Second I can not own anything as this is subject to search and seizure if its demeed that I am a public threat. In this day and age of the need for security all these (people "sheep") would rather be herded by the (goverment "sheppard") then actually do something to defend themselves. I for one am tired of all of this rhetoric being spewed by the goverment on how we need to allow them more access to "control" or as they say "protect" us. I for one am ready to take my rights back and have expectations that they will leave me the hell alone.

    </was unable to decide whether this was a flame or black ops

  2. Robert Henry Sullivan

    Privacy is according to ur position in society

    Case in point, why does the congress have to subpoena the white house e-mail, or why does AMD have to subpoena Intel's e-mail.


  3. amanfromMars Silver badge

    Keystone Cops Recipes

    All this retention of records and mail for "legitimate" goverment, protection of the people against terrorism snooping/security purposes will be a gold mine of information for newly installed, changed administrations.... flexing their muscles.

    Although it will all end up looking like a joke I suppose, with so much being hidden.......or will there be special exemptions/privileges/Stay out of Jail free cards?

    Don't bother answering that if you think it most unlikely and are "never, that would be criminal" minded.

  4. Anonymous Coward

    Don't Americans Ever Get Tired of Being Trampled?

    The Fed is apparently hoping to take the high ground before encrypted personal communications finally breaks free of the dead black hand of the NSA/NRO/JD-- PKI use in email accounts should have been implemented long ago to stop spammers if nothing else. Encrypting email should be prima facie evidence that the transmission is private -- like using an envelope in the postal mail. It seems reasonable that email is more like physical mail than a telephone conversation (but if you really want privacy, only talk face to face....). On the other hand, wireline is considered private without the use of, say, a STUIII phone link (and has anyone else noticed that the few companies that were going to produce cheap equivalents to STUIII phones always seem to mysteriously fail? STUIII isn't even considered secure anymore! Methinks the tech went over with the Pilgrims or something!)

    Few people personally use encryption because there is a (worldwide) lack of key management infrastructure. Key management is the hard piece [if the blanket argument is accepted that email is not private, then obtaining the keys for decryption without any due process would not be an accessory to an invasion of privacy. Once email is "not private" it is an uphill battle to change that.]

    It would be hardly surprising if the Fed would extended their claim to include any emails transiting the US, just like the banking data that can be grabbed. An interesting application would be to deliberately set up the network topology so that [name your country's] email transits a node in the US and therefore can be legally pilfered vs. clandestinely pilfered using SIGINT.

    If you aren't paranoid yet, start sweating now.

  5. Robert Long
    Black Helicopters


    Next you'll be telling me that the US is run by and for corporate interests.

    Even if warrents etc were required, the government would ignore them. The American Constitution is not worth the paper it's printed on. In fact, if you had an original copy it would probably be worth a great deal more than the empty words daubed on it.

  6. Anonymous Coward
    Anonymous Coward


    These over reaching cretins are sawing the branch they are sitting on. I don't for a moment believe email is private, but I will bet that the people saying you have no right to privacy are going to say something in an email sometime that will be read and cause their downfall.

  7. Anonymous Coward
    Dead Vulture

    Privacy, what privacy?

    So going by the government's argument, I should theoretically be able to go into an American ISP and request a copy of any government officials email messages they have on their system, and have them given to me, for a fee of course.

  8. Anonymous Coward
    Black Helicopters

    And you laugh about the second amendment?

    This is probably going to piss a lot of people off, but, if I understand my lessons from school (numerous decades ago), the second amendment was put in place mainly to allow the citizens to protect themselves from an over-repressive government, which is obviously where we're heading.

    While I, with great reservation, admit that some of the tactics that our government are rooted in the best of intentions, they are being bastardized with reckless abandon and thoroughly abused by a bunch of morons and political hacks.

    The founding Fathers of our nation would be hanging their heads in disgust and shame right now, if they had any idea how their original plan has become warped and twisted by those would wish to force us into an Orwellian-like culture.

    Ironically, the blame of this cannot be placed solely in Dubya's lap. This started back in the late 30's and 40's, at the dawn of the computer age and has gotten scarier with each and every passing year.

    So, for the record, this is one "Yank" who refuses to give up his weapons out of fear of his "Big Brother-esque" government.

  9. Misha Gale

    For once, Britain was ahead of the US on this one...

    After reading this, I was considering switching to a non-US e-mail provider, then I remembered the RIP act abolished online privacy yonks ago. And by not having a constitution, we've saved all the bother of having to find a court to circumvent it. Rule Britannia!

  10. Emo
    Black Helicopters

    Could be a good time to..

    Buy shares in PGP/download OSS encryption ;)

  11. yeah, right.

    Solution: encrypt

    The solution is obvious: always encrypt. Whether you're sending a quick hello to a friend, or a sales projection to a colleague, always encrypt your email. If everything is encrypted, they can't sort the wheat from the chaff.

    Yet I'm having a devil of a time convincing even die-hard privacy activists to encrypt their email. It's not that difficult to setup on Mac/Windows/Linux, yet they just won't bloody do it. People who have gone to great extremes to protect their privacy are still not encrypting their email as a matter of habit. I find that really strange, and I have no explanation for the phenomenon.

  12. Rick

    who's ready

    Who's ready to join me and Edgar Friendly and "The Scraps"? I wonder how long till we have another revolution and change the way we are headed or at least the way the world thinks?

  13. Syd

    Anyone who thinks their email is actually private...

    ... is kidding themselves anyway! "They" are reading it - get used to it, and don't write anything you wouldn't want read out on the six o'clock news. And encryption? Hello? If the recipient can read it, so can "they"!

  14. AMD

    Time to encrypt

    Email is in plain text, so one could argue as the government does that it is like sending a post card. Sealing it up with encryption would be like putting it in an envelope against curious postmen.

  15. Jon Tocker


    Fine in theory, but how long before the USgov brings in something like the UK legislation making it an imprisonable offence to refuse/fail to hand over encryption keys?

    You have no right to private email, we can't read the emails your ISP has obligingly handed over, whilst wagging its tail like a good little doggy, now ante up the encryption key(s) or it's off to prison for 5 to 10.

    I still reckon the only way to beat these bastards is for every man woman and child who uses the internet to include "bomb, jihad, Whitehouse, Downing Street, C4, Allah, biological weapon, infidel" as part of their email signature or (better) randomly inserted in the body of the email so that their software makes a "positive" on every little "I wnt 2 teh mall on Saturday an hung wiv my peeps it waz orsum. Mallrats FTW" email.

    Fuck 'em. They want to read emails? Give 'em so much to read it's not funny any more.

  16. J
    Black Helicopters

    The "free" world in free fall?

    "your emails have been voluntarily conveyed to your ISP"

    Yeah, and my calls have been voluntarily conveyed to the phone company, and my snail mail has been voluntarily conveyed to the post office... Envelope or not.

    This is so ridiculous. Can I read Dubya's email then? Oh, that's right, apparently he does not use the internets -- or so he said, I think.

    "the second amendment was put in place mainly to allow the citizens to protect themselves from an over-repressive government"

    BS. I always wonder why people try this one when rationalizing why they have guns. Well, that might have been valid 200+ years ago. But are you saying a bunch of overweight guys carrying light weight weaponry can stand up to the world's biggest military power? Yeah, right. To believe that, one would have to be watching too much Hollywood. If you were Iraqis in Iraq, maybe...

  17. Dave Barnhart

    Remember the Clipper Chip?

    None of this is new news. The government has ALWAYS felt that it's citizens have no right to privacy.

  18. Robert Long
    Black Helicopters

    2nd amendment

    Yeah, good luck using your hunting rifle against the government's tanks.

    As to encryption in the UK: at least it forces them to tell you that they want to read your mail, and lets you decide if you'll let them

  19. Anonymous Coward

    re: Thanks George Orwell

    Don't you mean "Thanks King George I?"

    Okay, if all this stuff is not private, then how come the Senate has to subpoena the White House every time they want to read something? And Georgie boy keeps refusing to hand it over? They should just be able to go in and take it, especially with the Freedom of Information Act to back this up. Top Secret, Confidential, Hogwash. Should apply to them, too.

    I picture all night shredding parties the day before the new administration moves in...

  20. David Wilkinson
    Gates Horns

    Probably best not to encrypt.

    Encrypting all your email is probably a good way to sign your self up for the full surveillance package. I am sure that raises all sorts of automatic red flags.

    20 years from now when your in a reeducation center because you couldn't provide big brother with the encryption key to unlock the emails in their archive you will look back and wish you followed my advice.

  21. yeah, right.

    Encryption (@ Wilkinson)

    The point I'm making is that if more people do it then they won't be able to do what you suggest. Right now, yes, there are few enough people doing it that they could probably do what you suggest.

    What I'm hearing you say is that I should censor myself now and let the government (pick a nation, any nation) just in case the government will eventually do it to me, because it's all going to hell in a hand basket anyway? Christ, and I thought *I* was a pessimist!

  22. Amy

    No right to privacy

    Oh good. This means that when we subpeona the emails of Bush and Cheney after they leave office they will have no right to privacy. They will rue the day they made these rulings when we send them to jail; the whole lot of them.

    Long Live America without Republicans Fascists.

  23. Michael H.F. Wilkinson Silver badge

    Encrypted? this is ART (of noise)

    Well-encrypted messages should look like noise, so it would be interesting to send streams of noise as e-mail and claim it is a form of art (i.e. the result of some chaotic process (Hey, fractals, it must be art then! Fancy a t-shirt)). They cannot force you to hand over a key without proving it is an encrypted message, which they can't.

    One completely uncrackable encryption scheme is using a one-time pad, i.e a key as long as the cypher text itself. The problem rests in sending the key through a secure channel (DVD by courier). If the pad is sufficiently random breaking the code requires tryig EVERY possible key of that length, which means that EVERY possible message of that length will turn up in the process. However, there is no way to select the correct one.

    However, these people are noted for their sense of humor (i.e. that they have none), so playing these kinds of tricks is not a good idea. If they want to scan all e-mails, and store them in a vast data base for analysis, 95% of what they will end up with is spam, and of the remainder 99% is probably drivvel (if cell-phone conversations in trains are anything to go by). Finding EVERYTHING makes finding ANYTHING very difficult.

  24. Alex Brooker

    help us all out

    can someone recommend a method for encrypting your email? What does everyone use and do they integrate well with email clients? And do you have to start calling them up to pass them a 128bit key? I know that these comments can be a goldmine of info - it's where I picked up the AVGFree/AdAware/Spybot/ZoneAlarm combo. Of course calling them up would play into 'their' hands - a face to face meeting in a Faraday cage would be better....



  25. Anonymous Coward

    no expectation

    I suppose if the government announces emails are not private, then no-one can have an expectation that they are private.


  26. Anonymous Coward
    Black Helicopters

    Arming bears?

    <<So, for the record, this is one "Yank" who refuses to give up his weapons out of fear of his "Big Brother-esque" government.>>

    Isn't that the reason American Citizens have the right to 'bear arms'? A protection against a rogue government?


    (Probbly now get black helicopters hovering over my place, but it's blowing a blizzard now, so guess I'll be OK. For awhile).

  27. Anonymous Coward

    Ahh a good article.

    Not that I would suggest good solid articles have been absent of late ;p


  28. Anonymous Coward


    <<<Yeah, good luck using your hunting rifle against the government's tanks.>>>

    Er, 3000+ US soldiers and counting....

    Not bad for an uncivilised primitive arab race (armed by US, of course).

  29. rasmus petersen

    All of your e-mail are belong to us.

    All of your e-mail are belong to us.

    What about servers that are not in the US, or non US residents with accounts on US servers ?

  30. Luke Maslany

    So those Media Defender emails were fair game after all!

    Type your comment here — plain text only, no HTML

  31. dpg

    RE: Don't Americans Ever Get Tired of Being Trampled?

    ".... transits a node in the US and therefore can be legally pilfered vs. clandestinely pilfered using SIGINT."

    Oh dear. The Merkins only wring their hands about protecting the rights of other Merkins. If they wanted the emails of a 'foreign national' they would just take them.

  32. William

    Of Common Carrier & the Fourth Amendment

    So are they saying that as long as an entity is voluntarily conveying information of any type (email. phone message, letters, etc.) through some middle man, and the middle man has access to it, then the government by default has access to it as well? This does not sound like it'll fly. Whatever happened to the Common Carrier concept? Did it go out the window with all of these Terms of Service contracts we all enter into nowadays? And what of the fourth amendment here? How does utilizing a service for delivery suddenly make a piece of communication open to all? What happened to the right of people to their privacy of thei reffects against "unreasonable searches and seizures?" Would warrants even be required any more? If not, then I guess the question of reasonable would be defenestrated.

    If this argument does fly and suddenly email is no longer an expected private means of communication, any important e-mail I send will be encrypted from this point on. This also leads down a dangerous slippery slope: If email is not private for this reason, then why are phone conversations private? Why is snail mail private? Let us hope that it does not get that bad.

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  34. Anonymous Coward

    @Jon Tocker

    C4? What's a UK terrestrial channel got to do with it?

    *coat, gone*

  35. Benedict
    Thumb Down

    @ AMD

    "Email is in plain text, so one could argue as the government does that it is like sending a post card. Sealing it up with encryption would be like putting it in an envelope against curious postmen."

    Except that if you put it in an "envelope" (i.e encrypt it), you run the risk of being an "enemy of the state".

  36. Colin Millar

    Hide in plain sight

    It must be getting easier for the bad guys to hide simply by appearing to elint to be harmless.

  37. Art

    @ Alex - method for encrypting your email?

    I've been using GnuPG for a while now under the guise of GPG4Win <> and <> or you might like to try Enigmail - it's an extension to the Mozilla Thunderbird and Mozilla Seamonkey mail client again using GnuPG

  38. Paul

    What Are "Rights?"

    Pretty soon Americans won't have the right to inhale if it interferes with the Bush gang's ability to rape and plunder is hindered. Besides; why argue if it's in the Constitution? Bush has been wiping his backside with it since he stole office.

  39. Dave
    Paris Hilton

    encryption and hiding messages

    hide your message content in media files, mp3, mpeg, jpegs of PH's boudoir gymnastics whatever - steganography - and encrypt these prior to sending; gives the elint techs more overtime ;-)

  40. Keith Doyle

    Email has NEVER been secure-- get over it...

    But hopefully stories like this will help encryption to become ubiquitous, with easy to use plug-ins for email clients.

    True, it is no guarantee but no point in making it easy for them. Might work as a spam filter too-- reject any email that arrives unencrypted-- and when the spam-meisters compensate for that and encrypt all spam, that'll give 'em some gibberish to waste their time on when they should be out pounding the pavement looking for the real bad guys instead of expecting the NSA to magically do all their work for them.

    Just as they thought high-tech weaponry would win in Iraq they think high-tech surveillance will do the same at home,. The serious bad guys will be writing a letter to "mom" about the "thanksgiving turkey" where everything is a keyword that means something nefarious but flies under the auto-surveillance radar-- there's more than one form of encryption and the best forms won't appear encrypted at all. Certainly any bad guy worth his salt must be well aware that all his communications are subject to surveillance, as these guys aren't even trying to hide that fact anymore (or if they are, it sure ain't working).

  41. Morely Dotes

    @ William

    "Whatever happened to the Common Carrier concept?"

    ISPs are not common carriers. Period.

  42. Mark McGuire

    Hooray! Project time not wasted!

    I took a Java class last year and made a semi functioning String encryption program. It took a users string, converted it into Baudot binary (used in encryption and one time pads), generated a key (of any length), threw the key into Baudot and added the binary together. Then it converted it back into a string, which was all garbled. Then a user could send the message and key to the recipient, and they could decrypt using a backwards method.

    The program had problems with symbols, so I scrapped the code after the class, but I did start working on it again recently. So now once I finish, I'll use that to keep my email private. I'll email the garbled text and text a prepaid phone the key. Brilliant!

  43. Anonymous Coward
    Anonymous Coward

    I hope that wasn't a rhetorical question...

    >Or buy a cell phone with a stolen credit card, and the government can read your text messages?

    I certainly hope so!

  44. Christopher DiOrio

    Legal Documents

    Didn't they determine a few years back that email can be considered binding, legal documents? How else would Tumbleweed and companies like that use it for packaging actual contracts and such?

  45. Chad Larson

    So that means...

    I can legally read all the email on the Republican National Committee's email server?

  46. Andy Worth


    All I see is a lot of people in a pram, and some toys on the floor by the side of it, having been thrown out of said pram. I accepted the fact years ago that email is not private, and that the government would be able to read what they wanted. I also accept that while amusing, they would have no general interest in my kinky messages to my girlfriend, and as I am not plotting global domination then my general messages are of no interest to them.

    I think that much ado has been made of almost nothing. The fact is that they read your emails anyway, this just allows them to bring the contents into court if required. The simple message being, if you are a criminal, don't use emails.

  47. Anonymous Coward
    Black Helicopters

    Re: Toys......Pram....

    May I suggest that you never become involved in any activities that the government won't like (from protesting a war, to speeding (if you're in the UK)). Or, perhaps, a fairly high ranking police officer will take a shine to your girlfriend?

    The fact you've mentioned kinky messages to your girlfriend, and toys in a pram would probably be enough for them to have you locked up for a few years -- or at least placed on a sex offenders register.

    OK, so that's a blatant exaggeration but, seriously, this is why people are worried -- it's not just those who are "guilty" who need to worry -- it's anyone who may be unlucky enough as to make an enemy. Having said that, as long as you're aware of just how much power is now for sale, you should be able to avoid trouble.

  48. Daniel B.
    Black Helicopters


    I read this article yesterday. Yesterday was the 5th of November. Maybe the US needs a dude in a Guy Fawkes mask? ;)

    As for the privacy issue, I've just given up trying to convince most people to use crypto. I got some using PGP, then they tossed it; same thing happened with SimpLite (that's for IM) or even the use of Hushmail.

    The average Joe is still too stoopid to realize how important this is, and won't learn how to do stuff he doesn't see as useful. Oh well, I can give Dubya the finger anyway as I do not live in the US. Though I have the slight feeling that all my free e-mail is being read now ...

  49. Phil Karn

    Encryption is the only defense we have left

    We have no other defenses left. If my use of encryption raises any flags, let it. I'd rather go down as a wolf than a sheep.

    Stop the conspiracy theories about the NSA having cracked every code ever devised. While there's no way to be sure, it seems very unlikely. But *don't* use your own homegrown ciphers. They are guaranteed worthless. Use the standards that have undergone rigorous public scrutiny. A lot of very smart people have looked at them, and they do seem pretty good.

    The fact is that the NSA doesn't *have* to crack encryption because the vast majority of communications between ordinary people and even companies is still in the clear, even the sensitive stuff. And even if it were all encrypted, they can still see who it's from, who it's to, when it was sent and how big it was. This is called "traffic analysis". It lets them map out who talks to who, and quite often that's enough to figure out who are the leaders and followers of a group.

    But we should still encrypt the contents of our communications on principle. Don't do it for just the important stuff, do it for everything, even discussions about the weather. Make it a habit. Learn how to do it, get your friends and family to do it, make it so routine that you don't even think about it. Look into S/MIME, the standard for encrypted email that has been built into Thunderbird and other email programs for years (but is rarely used). Do *not* use webmail; by its very nature it cannot be encrypted against interception by the ISP that provides it.

    Another lesson we've learned in the practical use of cryptography is that the better is often the enemy of the good. The main reason we don't routinely encrypt all our email is the lack of an easy to use public key infrastructure. But the fact is that we could have completely thwarted the NSA's massive, passive eavesdropping without it. In cryptography, as in many things, you can get 99% of the benefit with only 1% of the effort.

    Above all, learn as much as you can and *don't give up*.

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