: Google, Others Help Yahoo Fight DOJ E-Mail Snooping

[Dave Farber <dfarber () me com>]

Begin forwarded message:

> From: Lauren Weinstein <lauren () vortex com>
> Date: April 14, 2010 5:09:17 PM EDT
> To: dave () farber net
> Subject: Google, Others Help Yahoo Fight DOJ E-Mail Snooping

>            Google, Others Help Yahoo Fight DOJ E-Mail Snooping
>
>                http://lauren.vortex.com/archive/000706.html
>
>
> Greetings.  In Charles Dickens' classic novel "Oliver Twist," the
> character of Mr. Bumble is chastised that "The law supposes that your
> wife acts under your direction."  He replies that "If the law supposes
> that ... the law is a ass -- a idiot."
>
> How little has changed.
>
> Google and a number of prominent pro-privacy groups have come to
> Yahoo's defense in its attempt to fight off intrusive efforts by
> the U.S. Department of Justice to gain access to stored e-mail
> contents without warrants ( http://bit.ly/bMY0cC [CNET] ).
>
> The Obama DOJ is even trying to go far beyond one of the most
> ludicrous aspects of current privacy laws, a section that I call the
> "Cinderella Clause."
>
> You'll recall that most of Cinderella's goodies (clothes, coach,
> footmen, etc. -- all courtesy of her handy fairy godmother) reverted
> to their original mundane aspects at the stroke of midnight.
>
> There's a similar effect in our privacy laws, with potentially even
> more devastating consequences.
>
> U.S. federal law normally requires search warrants to access remote
> e-mail contents in "electronic storage" that are less than 181 days
> old (approximately six months).  After 181 days, all bets (and most
> legal protections) are off.  As far as the federal government is
> concerned at that point, you stand naked before their demands for your
> e-mail, whomever is holding it at the time -- other than yourself
> (more on this in a moment).
>
> Disturbingly, the Obama administration is pushing this perverse
> situation much farther into the Bizarro World, by claiming that even
> if e-mail is less than 181 days old, once "opened" by users it no
> longer is in "electronic storage," and so should be available to the
> government without warrant regardless of how short a time it has
> existed.
>
> The claimed concept that opened e-mail is no longer in "electronic
> storage" may come as quite a surprise to technologists (like myself)
> who were previously unaware of the fact that opening an e-mail message
> instantly transformed it (cue the magic wand!) from bits and bytes on
> spinning disks into something apparently much closer akin to cottage
> cheese.
>
> This is insanity of course -- as Mr. Bumble would likely recognize.
>
> But the same rules don't apply for e-mail that you have stored locally
> on your own computers -- your legal protections are currently higher
> in such a case.
>
> This reality divergence is intolerable, and is a main reason why
> Google, Microsoft, AT&T, and an extraordinary range of other groups
> recently joined forces as the "Digital Due Process" coalition 
> ( http://www.digitaldueprocess.org ) -- calling for a rewrite of the
> 1986 Electronic Communications Privacy Act (ECPA), which created much
> of this twisted situation in the first place.
>
> Their goal is to change the law to require the highest possible
> privacy standards for e-mail users regardless of where e-mail is
> stored (and irrespective of whether or not is has been opened by the
> recipient, for that matter).  In particular, search warrants should be
> required for any access to e-mail contents.
>
> I wholeheartedly support this effort to update the ECPA and bring
> common sense back to e-mail privacy.  It is intolerable that cloud
> computing services and their users should be hobbled by the existing
> disparity affecting the privacy of e-mail.
>
> In the meantime, keep in mind that the fellow knocking on the door of
> your e-mail provider, demanding access to your e-mail contents,
> probably isn't a prince holding a recently discovered glass slipper.
>
> --Lauren--
> Lauren Weinstein
> lauren () vortex com
> Tel: +1 (818) 225-2800
> http://www.pfir.org/lauren
> Co-Founder, PFIR
>   - People For Internet Responsibility - http://www.pfir.org
> Co-Founder, NNSquad
>   - Network Neutrality Squad - http://www.nnsquad.org
> Founder, GCTIP - Global Coalition 
>   for Transparent Internet Performance - http://www.gctip.org
> Founder, PRIVACY Forum - http://www.vortex.com
> Member, ACM Committee on Computers and Public Policy
> Lauren's Blog: http://lauren.vortex.com
> Twitter: https://twitter.com/laurenweinstein



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