Monday, May 10, 2010

Postcards, Emails and Unauthorized Access

As I’ve noted in earlier posts, lawyers sometimes analogize emails to postcards. As I’ve also noted, prosecutors often do this when they’re arguing that emails aren’t entitled to as much 4th Amendment protection as are sealed letters sent through the mail.

This post is about a case in which the email-as-postcard theory came up in a different context.

The case is People v. Klapper, 2010 WL 1704796 (Criminal Court – City of New York 2010), and this opinion deals with the defendant's motion to dismiss the charges against him.

The defendant – Andrew Klapper – was charged with unauthorized use of a computer in violation of New York Penal Code § 156.05. This is all I know about the facts that led to his being charged:

[D]eponent is informed by a first individual known to the District Attorney's Office that [Klapper] installed software on a computer at [Klapper]'s office that recorded the keystrokes entered by the users of said computer.

Deponent further states that deponent is further informed by a second individual known to the District Attorney's Office that said second individual was an employee at [Klapper]'s office and was instructed by [Klapper] to use only the above mentioned computer. Deponent further states that deponent is further informed by said second individual that said second individual then used the above-mentioned computer for work-related purposes, including to access and use a personal e-mail account.

Deponent further states that deponent is further informed by the first individual that the software installed by [Klapper] on the above-mentioned computer recorded the password for the e-mail account of the second individual. Deponent further states that deponent is further informed by the first individual that said first individual observed [Klapper] access the second individual's e-mail account and print copies of computer data and computer material contained within the second individual's e-mail account.

Deponent further states that deponent is further informed by the second individual that [Klapper] e-mailed said second individual an electronic document that contained portions of e-mails generated from said second individual's e-mail account. Deponent further states that deponent is further informed by said second individual that [Klapper] had no permission or authority to access said second individual's personal e-mail account or to take or use any computer data, computer material, or other electronic information stored in said second individual's personal e-mail account.

People v. Klapper, supra. The opinion says this statement of facts is taken from the “factual portion of the accusatory instrument”, which apparently was a complaint.

Section 156.05 of the New York Penal Code provides as follows: “A person is guilty of unauthorized use of a computer when he or she knowingly uses, causes to be used, or accesses a computer, computer service, or computer network without authorization.” As this opinion explains, other provisions of the Penal Code define three relevant terms:

A computer is defined as `a device or group of devices which, by manipulation of electronic, magnetic, optical or electrochemical impulses, pursuant to a computer program, can automatically perform arithmetic, logical, storage or retrieval operations with or on computer data, and includes any connected or directly related device, equipment or facility which enables such computer to store, retrieve or communicate to or from a person, another computer or another device the results of computer operations, computer programs or computer data.’ [New York Penal Code §] 156.00[1]. A computer service includes `any and all services provided by or through the facilities of any computer communication system allowing the input, output, examination, or transfer, of computer data or computer programs from one computer to another.’ [New York Penal Code §] 156.00[4]. . . . [T]o access a computer, computer service or computer network means `to instruct, communicate with, store data in, retrieve from, or otherwise make use of any resources of a computer, physically, directly or by electronic means.’ [New York Penal Code §] 156.00[7].

People v. Klapper, supra. New York Penal Code § 156.00[8] defines “without authorization” as

to use or to access a computer, computer service or computer network without the permission of the owner . . . or someone licensed or privileged by the owner . . . where such person knew that his or her use or access was without permission or after actual notice to such person that such use or access was without permission. It shall also mean the access of a computer service by a person without permission where such person knew that such access was without permission or after actual notice to such person, that such access was without permission.

Klapper argued that the “accusatory instrument” didn’t allege facts sufficient to

establish a prima facie case to support the charge of unauthorized use of a computer. . . . [He] argues that the factual allegations fail to identify with specificity the email account allegedly accessed or any other facts to support that the alleged access was unauthorized, inasmuch as the complaint fails to state whether the email account was complainant's personal-work email account or a `private personal’ email account. Moreover, [Klapper claims] the allegations are devoid of facts to support that complainant had an expectation of privacy with regard to email use at work since [Klapper] owned the computer and complainant was [his] employee.

Klapper therefore argued that the court should dismiss the complaint as substantively inadequate. People v. Klapper, supra. The prosecution – the People – opposed the motion to dismiss, claiming the factual allegations in the complaint were sufficient to

support the charge. First, the People contend that the allegations that [Klapper] was (1) observed by another employee installing keystroke-tracking software on a computer, (2) that he instructed complainant to use said computer, (3) that complainant did use said computer `for work-related purposes, including to access and use a personal email account’, and (4) that [Klapper] was later observed accessing said email are sufficient to support the charge, as the allegations provide [him] with the conduct and crime that he is alleged to have committed. Second, the People contend that the question of whether [Klapper] as an employer had the authority to access the email account is an issue of fact for trial, as the complainant's use of the computer for work-related purposes goes to the weight, not the sufficiency of the charges.

People v. Klapper, supra.

The People lost: The judge held that the factual allegations in the complaint weren’t sufficient to “establish the element of `without authorization,” so the complaint was “jurisdictionally defective”, i.e., it didn’t charge a crime. People v. Klapper, supra. He explained that the allegations that Klapper “installed keystroke-tracking software and viewed email” were “legally sufficient to establish” that he “knowingly . . . accessed a computer”. People v. Klapper, supra. He also found that “based on the circumstances, herein, the allegations” were insufficient to show Klapper “acted without authorization.” People v. Klapper, supra.

[I]t is not contested that [he] owned the computer, as the allegations clearly state that the keystroke tracking software was installed `on a computer at the defendant's office.’ The allegations further state that the complainant was `an employee at the defendant's office’ and complainant used said `computer for work-related purposes, including to access and use a personal e-mail account.’ [But the complaint does] not allege that [Klapper], the computer owner, had notice of any limited access to the computer or the email account. The allegations further fail to allegation that complainant had installed a security device to prevent unauthorized access or use. Conversely, the allegations state that [Klapper] sent an email to complainant containing documents from her email account, which supports an inference that [he] did not have notice or at minimum had a reasonable belief that his access was not prohibited or limited.

People v. Klapper, supra. And that brings us to the email-as-postcard issue:

Whereas, some may view emails as tantamount to a postal letter which is afforded some level of privacy, this court finds . . .emails are more akin to a postcard, as they are less secure and can easily be viewed by a passerby. Moreover, emails are easily intercepted, since the technology of receiving an email message from the sender, requires travel through a network, firewall, and service provider before reaching its final destination, which may have its own network, service provider and firewall. An employee who sends an email, be it personal or work related, from a work computer sends an email that will travel through an employer's central computer, which is commonly stored on the employer's server even after it is received and read. Once stored on the server, an employer can easily scan or read all stored emails or data. The same holds true once the email reaches its destination, as it travels through the internet via an internet service provider. Accordingly, this process diminishes an individual's expectation of privacy in email communications.

People v. Klapper, supra. The judge seems to use this analogy to buttress the point he made earlier, i.e., that Klapper knew he didn’t have authority to access the computer and/or email account. To convict Klapper of violating New York Penal Code § 156.05, the prosecution would have had to prove that he (i) knowingly (ii) accessed (iii) a computer (iv) without being authorized to do so. This judge found that, at a minimum, the “accusatory instrument” – the criminal complaint – didn’t adequately alleged that Klapper knowingly accessed a computer without being authorized to do so. (It looks to me like he also, at least implicitly, found that the complaint didn’t adequately allege that Klapper accessed a computer without being authorized to do so, but the failure to plead knowledge seems to be the primary basis of the opinion.)

I think the paragraph that utilizes the email-as-postcard analogy is probably what we lawyers call dictum: comments a judge includes in his opinion but that are not a substantively essential part of the decision. It almost looks like an aside to me.


Unknown said...

The opinion seems to miss that it was the password not the emails that the complainant had a reasonable expectation of privacy in. The fact that Klapper had to install a keystroke tracking program seems more than sufficient evidence that he knew he did not have authorization to access the email account to deny the motion to dismiss. All the discussion about email as post card seems like the worst kind of dicta - totally not relevant to the actual issue of knowledge of authorization.

Unknown said...

I'm at a loss to find a definitive ruling. Has their been a clear, recent decision whether or not a person can legally be compelled to reveal their password to encrypted e-mail?

I've read the October 12, 2007 post re Envelopes and encryption "Americans have a reasonable expectation of privacy in the contents of emails they have stored on an ISP’s servers."

My need for certainty arises in that I've developed an alternative to e-mail that never resides on an ISP's servers and I want to be able to speak with confidence that it is even more sacrosanct.

Any insight is truly appreciated as I sincerely believe the vast majority of Internet users have no awareness of how vulnerable their unencrypted e-mail actually is - however, if the courts can rule that a citizen must reveal their password on demand, then there is no point in encrypting e-mail.

Unknown said...


As far as I know there has not been a definitive ruling on whether your password is testimonial in nature. If it is then you can refuse to answer and are protected by the 5th amendment. If not, i.e. it is like a fingerprint or blood sample, you have no right not to provide it. Personally, I think it is the former but I assume most AUSAs would argue the latter.

Susan Brenner said...


First, I agree with Ercoupe415 . . . that there hasn't been a definitive ruling on passwords and the 5th Amendment. If you reach my two Boucher posts, you saw that a federal court in Vermont reached opposite conclusions on the issue (magistrate's opinion versus federal district judge's opinion).

Other than that, there really hasn't been a case on encryption and passwords/keys.

One of the arguments as to why unencrypted email isn't protected by the 4th Amendment is the fact that you leave it, in its unencrypted and therefore readable state, on an ISP's servers. If you have an alternative to that, it may make the analysis more complex.

As to a definitive opinion, you'd need to consult with a retained lawyer and see if he/she can help you out.

Good luck.

Unknown said...

Thank You for both comments. I read the Boucher posts and hoped a more current decision might have been decisive.

Unknown said...

The more I delve into the Boucher case, the less inclined I am to believe the latter ruling spoke to the nexus of my question. It seems the court's opinion was from a different perspective:

"A District Court judge agreed with the government, holding that, given Boucher's initial cooperation in showing some of the content of his computer to border agents, producing the complete contents would not constitute self-incrimination.

This actually avoided any ruling on the applicability of the 5th Amendment by in effect stating the Boucher had already revealed the contents and thus the password and encryption were a non issue.

Have I misread this?

Susan Brenner said...


If you read my post on the second Boucher ruling, you know I don't think much of it. The government modified the subpoena, which gave the judge a way to claim that complying with the subpoena didn't violate the 5th Amendment. As I believe I said in that post, I don't buy that at all . . . it shifted the focus to the encryption key itself, but that isn't the point.

The early cooperation isn't as specious (IMHO) . . . it's a basic principle of 5th Amendment law that if you once cooperate with law enforcement, you waive the 5th Amendment privilege -- you "open the door" -- on that issue. So that, I think, was Boucher's Achilles heel. Since he did cooperate, the issue there becomes the scope of his cooperation and the scope of the consequent waiver of the 5th Amendment privilege . . . assuming it applies.

Actually, since this judge applies the waiver-loses-5th-Amendment-privilege-protection concept, he's at least implicitly finding that the 5th Amendment privilege DID apply here . . . .

Unknown said...

Thank you Susan. I appreciate your insight. If I may, could I ask your opinion on a nuance?

I read the 5th amendment as only pertaining to criminal activity.

What if a student communicates with you about your recommendations for summer reading material via a digital methodology that travels directly from computer to computer sans an e-mail server; and, most importantly, employs enough layers of encryption to essentially be unbreakable?

Not to be redundant nor put too fine a point on the inquiry:

1) While the transmission utilizes the Internet and the connection to the Internet is via a 3rd party in the form of an Internet Service Provider, the ISP functions solely as a conduit and not as a repository. Ipso facto, neither you nor the student chose to leave a communication in an "unencrypted and therefore readable state" on an ISP's servers.

2. In theory, neither you nor the student have engaged in criminal behavior which leads me to believe the alternative, encrypted communication approach sans e-mail server requires resolution solely on interpretation of the 4th Amendment as you originally alluded to in your first response.

I hope this discussion is not perceived as pedantic inasmuch as there are myriad of communications which I believe should be sacrosanct: family, business, medical, financial, military, etc. As I read in one of your other posts, a student opined the reason people didn't use encryption was it was a time consuming challenge. By automating the entire process, we hope to offer an easily used alternative.

I imagine my attorney - at Duane Morris, LLP - is only to happy to take this to court should it come to that. Today, I'm simply in search of perspective.

Susan Brenner said...

First of all, if you're going to offer an easy way to encrypt email, I'm delighted . . . I've been waiting for that to happen.

I don't quite agree with you as to the scenario set out above. It would be resolved under the 4th Amendment if the government could independently obtain the communications and their contents without having to ask the student or me for an encryption key. As I've noted in other posts, the 4th Amendment applies when (i) the government is investigating criminal activity and (ii) the government seeks to obtain physical evidence by searching a place and seizing that evidence. So if there's nothing on the ISP or elsewhere for the government to search for and seize pursuant to a warrant or an exception to the search warrant requirement, the 4th Amendment essentially (note that) wouldn't apply.

I'm assuming that in your scenari the government has been able to obtain the encrypted emails . . . and wants to be able to read them. If that's not the case, and if the government wants me and the student to testify as to what was in the emails (or produce them in hard or soft copy), we're into the 5th Amendment . . . because the grand jury subpoena process is how the government goes about obtaining testimony and/or the production of testimonial or non-testimonial evidence from people. Here, the act of production as implicating the 5th Amendment would come up . . . and if there's no way the student and/or I can show that producing the emails would incriminate us in a crime, we'd have to comply or go to jail for civil contempt.

If the emails no longer exist and the government wants to interrogate us about their contents, then that implicates the due process voluntariness standard and the Miranda rules, both of which apply to police interrogation of people. If the government want to use the grand jury subpoena process, then we're back to the 5th Amendment (because neither of those interrogation rules applies to grand juries).

Did you read the posts on the Warshak case? . . . that was a civil case that tried to establish a 4th Amendment right of privacy in stored emails . . . you might check them out.

Unknown said...

"First of all, if you're going to offer an easy way to encrypt email, I'm delighted . . . I've been waiting for that to happen."

Please check your .edu e-mail account.

Unknown said...

With permission of Susan W Brenner...

I've been seriously concerned about personal privacy challenges in the digital world for over a dozen years. In response to the comment: "First of all, if you're going to offer an easy way to encrypt email, I'm delighted . . . I've been waiting for that to happen." the description of our software on the KeyBeam website and in the Beams YouTube video is:

For bright Windows users exchanging sensitive information via the Internet, Beams are an easy to use alternative to e-mail. The look and feel is intentionally similar, but even while creating data, everything is guarded from intruders inside an encryption envelope endorsed by the NSA. Click SEND and your files are further password protected during compression and then digitally signed using still another encoding algorithm. To assure maximum secrecy and authentication, public key/private key cryptography adds a deeper layer of security immediately prior to the creation of an enciphered path. And rather than the extremely vulnerable, central switchboard design of e-mail, Beams travel a one-time tunnel guaranteed free of spam, spyware, viruses and snooping. Like a direct dial, person-to-person call, Beams find the shortest, fastest path between two points eliminating web site server copies for sale or surrender. Beams assure every communication is swift, safe and virtually untraceable. When Privacy matters, Beam it.

My post here is not an endorsement of the software by Susan W Brenner.