tag:blogger.com,1999:blog-21633793.post7479546753914258172..comments2023-12-12T03:19:42.467-05:00Comments on CYB3RCRIM3: Yahoo! Chat as Confidential CommunicationSusan Brennerhttp://www.blogger.com/profile/17575138839291052258noreply@blogger.comBlogger3125tag:blogger.com,1999:blog-21633793.post-35004936770523204692010-04-30T19:10:28.014-04:002010-04-30T19:10:28.014-04:00These kinds of claims ought to be resolved on much...These kinds of claims ought to be resolved on much simpler grounds: if I transmit a communication to a recipient in a manner that necessarily involved him/her "intercepting" it by means of a device, then I have consented to same.<br /><br />An analogy: if I leave a message on the answering machine of a friend in California, it would be extraordinary to then allow me to claim that the "interception" violated state law because I didn't consent. The same is, or ought to be, true of any computer communication, where a "device" (the recipient's computer) must "acquire" the contents of the communication (in RAM at a minimum, and likely on the hard drive as well) in order for my intended recipient to read it.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-21633793.post-41746077035070660152010-04-19T12:51:12.862-04:002010-04-19T12:51:12.862-04:00Since the 4th Amendment is the constitutional prov...Since the 4th Amendment is the constitutional provision that protects privacy, I'm going to analyze the prosecutor's argument, and the implications of that argument under the 4th Amendment, only. It may be possible to raise other privacy claims under federal statutes, but I'm not going to address them in this comment (i) because it would take too long and (ii) because they are only statutes and, as such, far more fragile than the protections of the 4th Amendment.<br /><br />As 4th Amendment law now stands, the privacy of written communication falls into 1 of 4 categories:<br /><br />(1) written but not shared with anyone, i.e., a diary): This is private under the 4th Amendment which means police have to get a search warrant to seize the diary and read its contents.<br /><br />(ii) written communication you've shared with someone, i.e., a letter or an email you've sent someone. The letter/email is private in the sense that the police have to get a warrant to come to your house, search for the letter/email, seize it and read it. But if the police ask the recipient of the email for it and that person gives it to them, you're out of luck; by sharing that information with another person you've assumed the risk of betrayal, i.e., assumed they'll give it to the police. <br /><br />(iii) written communication you've drafted and are in the process of sending to someone whom you intend to read its contents, i.e., a letter or email in transit. If it's a sealed letter, police must get a warrant to intercept the letter, seize it and then read it; it's private under the 4th Amendment under a 19th century Supreme Court case. As I've noted in various posts on the blog (do a search for CYB3RCRIM3 and Warshak to find some of them), the current state of 4th Amendment protection for emails in transit is a little uncertain. On the one hand, they look like sealed letters moving through the post office; on the other hand, they are moving through private proprietary systems and aren't sealed, which means anyone with access to that system can read them. The government tends to argue that if you expect email in transmission to be private under the 4th Amendment, you need to seal it by encrypting it. Now, there's a federal statute (the Wiretap Act) which protects the contents of emails while they're in transmission, but there's another debate about when they've come to rest and when they're still in the process of being transmitted. I did some posts on that, too.<br /><br />(iv) written, transmitted, read and stored on a server: This scenario really doesn't come up for letters; they're stored with the post office until they're delivered, which gets us into scenario (ii). The government tends to argue that by leaving your email stored on the ISPs server, you've surrendered any 4th Amendment protection because if the emails aren't encrypted the ISP's employees can read them. I talked about this in my posts on the Warshak case. <br /><br />So the prosecutor's theory goes too far in certain regards, but it's not totally off the mark.<br /><br />Do I think the current state of affairs is acceptable, in all regards? As I've noted in earlier posts, I think we need to see that scenarios (iii) and (iv) clearly come within the protections of the 4th Amendment . . . but that's just what I think.Susan Brennerhttps://www.blogger.com/profile/17575138839291052258noreply@blogger.comtag:blogger.com,1999:blog-21633793.post-23500086291059233362010-04-19T12:14:44.566-04:002010-04-19T12:14:44.566-04:00"The prosecutor argued that a message sent in..."The prosecutor argued that a message sent in a recorded format, i.e., writing, belies any claim of expected privacy."<br /><br />Can you elaborate on this? I *hope* the prosecutor does not seriously consider all written communication to be of a non-private nature.Prof Ducknoreply@blogger.com