Last week, two new district court opinions took opposing views on the question of whether the Fourth Amendment protects stored email. One of the cases easily adopted the prevailing view that the Constitution protects electronic communications, while the other ignored existing U.S. Supreme Court and Ninth Circuit precedent to find consumers have no expectation of privacy in messages stored with third parties. EFF will be watching these developments closely as we continue to press for email privacy rights in the Sixth Circuit Court of Appeals in U.S. v. Warshak and in other matters.
Email -- like letters, telephone calls or documents you keep in a rented locker -- should be fully protected by the Fourth Amendment. As with letters, calls or rented property, your expectation of privacy against the government does not weaken simply because you entrust the document to a third party for delivery or storage. Law enforcement needs a warrant to intercept your phone calls, even though they travel over wires owned by the phone company, or to search your storage locker or hotel room, even though the property owner has the right to enter in some circumstances. The same protections should and must apply to email. It matters not that a third party transports the messages (mail), that they are capable of interception (phone calls), or that they are kept on a third-party server (rented storage).
The government conceded Fourth Amendment protection in one of last week’s opinions and successfully fought against it in the other. In the New York case, United States v. Cioffi, the government wanted to search the defendant’s personal email account for messages showing that he and a confederate knew that they were misleading customers in a financial fraud scheme. The affidavit in support of the warrant asked for copies of messages related to the fraud offense but the warrant itself [more broadly]purported to give the agents permission to obtain all email
through a certain date. The government conceded that the e-mails were Fourth Amendment protected. The disputed issue was whether the warrant satisfied the constitutional requirement that it describe with particularity the place to be searched and the things to be seized. The court held that the warrant was overbroad because it authorized officers to obtain emails other than those for which there was probable cause, and therefore suppressed even the fraud-related messages that were discovered. This New York district court was right. The contents of electronic communications are protected by the Fourth Amendment, and that protection means law enforcement needs a valid warrant, not an obviously overbroad one, to search or seize the messages.
In contrast, the government in the Oregon case, In re: United States, successfully argued that you have no protectable Fourth Amendment rights in your email, at least in part because it is stored with third parties. Agents had applied for a warrant for email under the Stored Communications Act ("SCA"), but did not want to serve post-seizure notice of the return of the warrant on the account holders. After concluding that the SCA only required notice to the ISP, the court then asked whether the Fourth Amendment required notice on the account holder, or whether notice on the ISP was constitutionally adequate. While giving lip service to the idea that email is protected by the Fourth Amendment, the court nevertheless stated that a user has no protected expectation of privacy when she stores her messages with a third party. The court also pointed to email service privacy policies to assert that users are, or should be, aware that their personal information and the contents of their online communications are accessible to the ISP and its employees and thus can be shared with the government "in appropriate circumstances".
In re: United States is wrongly decided. While supposedly starting from the (correct) assumption that the Fourth Amendment protects email, the court then concludes that one has no expectation of privacy in materials stored with a third party. Email uses a store-and-forward transmission protocol; the messages are always transmitted through third parties. Moreover, almost all consumer email is stored at some point with a third party, whether as long term backup or incident to transmission. Thus, the presumption the court says it adopts is essentially meaningless; only those few corporations and individuals that host their own email would be arguably entitled to any constitutional protection the Oregon court says it assumes applies.
The opinion is also contrary to binding Supreme Court and Ninth Circuit precedent. In the 1967 cases of Berger and Katz, the U.S. Supreme Court held that the Fourth Amendment strongly protects telephone calls even though they travel over wires owned by the telephone company, or can be intercepted with a listening device on the outside of a telephone booth. The Court confirmed protection for the contents of communications in Smith v. Maryland, when it distinguished Katz from its holding allowing warrantless collection of dialed telephone numbers from the phone company, since the contents of communications were still protected. The Ninth Circuit, in which the Oregon court resides, has further confirmed that the Fourth Amendment protects electronic communications as well as phone calls in Quon v. Arch Wireless. In that case, the Department of Justice argued exactly what it argued in In re United States -- that because email and text messages are stored by third parties with the practical ability to read them, senders and recipients have no expectation of privacy in those messages. The appellate court rejected that view, holding that text messages, and presumably emails, are like letters or packages, and are protected even though the shipper could open them.
The Oregon court also got the analysis of the effect of terms of service and acceptable use policies dead wrong. In Quon, the Ninth Circuit followed its prior ruling in United States v. Heckenkamp, which held that a student did not lose his reasonable expectation of privacy in information stored on his computer, despite a university policy that it could access his computer in limited circumstances while connected to the university’s network. Like hotel rooms or storage lockers, a limited right of access on the part of the facility owner does not defeat all expectation of privacy versus the government. Moreover, the Oregon court itself had to admit that users might expect government access – not in all circumstances, but only "in appropriate circumstances", a situation that users can reasonably expect would involve a warrant based on probable cause.
There is other foolishness in the Oregon opinion, including the hyper-technical assertion that when the government copies your email, they have not seized your data because you still have a copy, so the government collection does not “meaningfully interfere” with your "possessory interest".
What’s even more disturbing, the Ninth Circuit may not get an opportunity to correct the Oregon district court. Since In re United States involved an ex parte proceeding, as of yet there is no real party in interest to appeal the court clearly erroneous opinion. Only if someone gets charged with a crime, and if that defendant becomes aware that the evidence the government intends to use was obtained as a result of a seizure that did not comport with the Fourth Amendment, will there be an opportunity for the affected party to ask for appellate review. This is one reason why EFF’s practice serving as amicus to district courts considering the applicability of the Electronic Communications Privacy Act and the Fourth Amendment to cell phone tracking, email seizures and other pre-indictment investigative techniques is so important – we may have only one chance to get it right before the government barges in without proper cause or authorization.
Digital Video Recorders, once considered a mortal threat by the entertainment industry, have now become its new best friend. It's just the latest example of how the industry's constant warnings of the dangers of "piracy" frequently turn out to be baseless hysteria.
Remember 2001? Digital Video Recorders ("DVRs") like TiVo and ReplayTV were poised to win mainstream adoption, allowing consumers to fast-forward past advertisements more easily than before. In response, the entertainment industry behaved predictably — it freaked out and filed a bunch of lawsuits.
Industry analysts claimed that DVR "potentially threatens the very lifeblood of how television is funded and how it's used for marketing and advertising." A coalition of television studios including Viacom, Disney, and NBC filed suit against SonicBlue, makers of ReplayTV, arguing that skipping commercials "effectively circumvents the means of payment to copyright owners for the programming being viewed... (and) thus constitutes copyright infringement."
Fast-forward eight years, and these claims turn out to be — surprise! — wrong. This weekend, The New York Times announced that "DVR ratings now add significantly to live ratings and thus to ad revenue."
A mystified NBC President Of Research called the situation "completely counterintuitive." But the reason behind the revenue isn't counterintuitive at all — it's obvious: When consumers are granted the ability to watch television whenever and however they want, they watch more TV — not less. That's a simple result which could only be "counterintuitive" to an industry that all too frequently treats its own best customers like criminals.
It's a cycle that by now has become sadly familiar: When the industry meets a new technology, it panics and fights it tooth-and-nail. Eventually, the industry loses this fight, often squashing innovation or arbitrarily singling out a few citizens for punishment along the way. Finally, the same technology ends up benefiting the same short-sighted industry — but rather than learn their lesson, the same corporations are usually busy repeating the same cycle all over again with something else. It happened with the VCR, the audio cassette, and even the turntable.
With a track-record like this, it's mind-boggling that the entertainment industry's schemes to "fight piracy" retain any credibility whatsoever. Unfortunately, thanks in large part to the industry's deep coffers, many in government continue to take their claims seriously. As a result, the UK is close to implementing a "three-strikes" policy of disconnecting illegal file-sharers from the Internet — even as a new poll reveals that those same file-sharers are the industry's best customers. Here in the USA, Hollywood is once again lobbying the FCC to introduce "Selectable Output Control" — a scheme which would grant the industry veto-power over new technologies.
Until legislators learn to stop trusting the entertainment industry's faulty "intuition," laws will continue to hurt innovation, consumers, and — yup — even the very industry they've been designed to protect.
Texas Instruments (TI) ultimately failed to stand behind their misguided claim that calculator hobbyists violated copyright law by having public, online discussions about techniques to get more functionality from TI calculators. Yet the company continues to dig itself into new holes by issuing more improper take-down letters.
Several weeks ago, TI sent a barrage of letters claiming that the calculator enthusiasts' discussions about the discovery of calculator operating system signing keys -- and the keys themselves -- violated the anti-circumvention provisions of the Digital Millennium Copyright Act (DMCA). TI demanded that the posts be taken down. EFF sent a letter to TI on behalf of three such bloggers, explaining why the company's legal claim was wrong, and stated that the men would restore their posts absent legitimate objection from the company. TI ignored both the letter and the deadline, and so the posts are now back online. Mr. Smith's post is here, Mr. Wilson's here, and Mr. Cross's here. You can find EFF's letter to TI here.
While it's no surprise that TI gave up when it found itself in the legal wrong, it is scandalous that the company continues to send its improper demands to other bloggers and hosting companies. In fact, TI has sent an identical take-down demand to Mr. Smith's university complaining about the same OS keys having been posted on our client's student webpage, and demanding that the school take the materials down from that URL. Today, Mr. Smith filed a DMCA Section 512 counternotice to continue the fight. Hopefully other calculator hobbyists who have received TI's baseless demands will consider standing up against the erroneous claim that reverse-engineered OS signing keys are illegal numbers that can not be published, discussed or linked to.
Nonetheless, UK Business secretary Peter Mandelson today stated explicitly that he intends to include three strikes in the upcoming digital economy bill. In a subsequent press conference, a government spokesman emphasized that the arbitrariness of this Internet enforcement mechanism will be proportional only to how ineffective it is as a deterrent:
If it [illegal filesharing] is a massive problem we could turn on a fast, powerful response... If there is a little problem we can be more proportionate. How draconian we are will be a matter for the secretary of state to decide at the time."
Is the UK really set to join France in a legally mandated three strikes regime? Even with Britain's generally government-friendly lawmaking process, that seems up for question.
A UK general election is due to occur within the next few months (the exact date is up to current Prime Minister Gordon Brown, but he is required to name the date before June 2010). The Conservative chairman for the committee considering the proposed digital economy bill has already expressed scepticism that there is time in this parliament if such a "hot potato" as three strikes is included.
The more British voters write to their MPs to complain, the hotter that potato will get. Unpopular and arbitrary proposals as three strikes will not sit well with any politicians facing an election in their near future.
As the deadline nears for a decision from the Copyright Office on EFF's request for a renewal of the 2006 exemption from DMCA liability for handset unlocking, prepaid phone companies have opened a new front in the war on consumer choice with a bill called the Wireless Prepaid Access Device Enforcement Act of 2009. If passed, this legislation would make it a crime to purchase or "handle" a prepaid handset for the purpose of modifying the software that ties it to the network, or to sell the handset outside the U.S.
EFF represents three phone recyclers in the DMCA rulemaking. These businesses take used handsets and, if possible, refurbish and resell them. The used handsets allow people around the globe to afford the benefits of mobile phones, while keeping functional technology out of landfills and the heavy metals they contain out of our water supply. But our clients are thwarted in finding homes for these perfectly good phones if the devices are locked to networks that purchasers do not want or cannot access, or if they cannot sell unfashionably old handsets in other countries.
So, who would support a bill to prohibit unlocking? Prepaid providers like TracFone and Virgin Mobile subsidize the cost of the handsets they sell, and hope to make up the difference through monthly service fees. But some "bulk unlockers" buy up all the subsidized handsets they can find, unlock them, and sell them at market rates, pocketing the difference. Both prepaid companies have successfully brought a variety of unfair competition claims against bulk unlockers -- demonstrating that neither this bill nor the DMCA prohibitions that threaten phone recyclers and consumers are required to protect prepaid providers' interests.
With this legislation, the prepaid wireless service companies would push the expense of protecting their business model onto the shoulders of the American taxpayer by making the FBI and the Justice Department investigate and prosecute handset unlocking for them. Moreover, the bill does nothing to distinguish bulk unlocking arbitragers from phone recyclers or from customers who simply want to switch providers or sell their phones. Here's the choice this bill presents: Congress can force taxpayers to pay the cops to help TracFone and Virgin collect their month-to-month contract fees, or Congress can reject the bill and allow the public to keep the right to unlock their mobile phones, switch their providers, and recycle their handsets. In our opinion, this should be an easy decision.
EFF will be watching this bill closely to make sure that we keep prepaid providers' handsets out of landfill, and their hands out of your pocket.
EFF today led a coalition of authors, publishers, companies and nonprofit organizations in sending a letter to the judge overseeing the Google Book Search settlement urging the Court to ensure that those concerned about the settlement receive adequate notice of, and have sufficient time to study and comment on, any amended settlement agreement that Google, the Authors Guild, and the Association of American Publishers present.
Those following the twists and turns of the Google Book Search settlement will recall that the original Fairness Hearing scheduled for October 7, 2009, was put off because of what the Court called: "significant issues, as demonstrated not only by the number of objections, but also by the fact that the objectors include countries, states, non-profit organizations, and prominent authors and law professors." The Court received over 400 submissions about the settlement, including the EFF-led coalition of authors and publishers concerned about reader privacy, as well as significant concerns raised by the Department of Justice.
As a result, the parties have promised the Court that they will submit an amended settlement on November 9, 2009. Today's letter arises from the parties' discussions with the Court in which they have suggested that the amendments to the already complex agreement be subject to limited notice and ability to comment and a truncated schedule ending with a Fairness Hearing in late December or early November. It states: "We signatories raised different specific concerns and issues about this settlement from a number of different vantage points. We are united, however, in our concern that the parties' requests to limit notice and the time and scope of objections will be unfair to us and to other class members."
The Google Book Settlement is simply too important -- and too complex -- to be rushed through the court approval processes without sufficient opportunity for analysis and comment.
Today the Ninth Circuit postponed a court-ordered deadline for the Office of the Director of National Intelligence and the Department of Justice to turn over documents concerning a legislative push to give telecom carriers legal immunity for their participation in the government's warrantless surveillance program.
The order comes after threeunsuccessfulattempts by the government to delay disclosure of the documents under the Freedom of Information Act (FOIA) pending the Solicitor General's decision whether or not to appeal.
In its fourth request for a stay, the government indicated that it will appeal a couple aspects of the district court's order to release the documents, namely the court's decision that the agencies must release certain communications exchanged within the Executive Branch and the identities of representatives of telecom carriers within the documents responsive to EFF's FOIA requests.
The Solicitor General has not yet decided whether to appeal other parts of the order, including the district court's determination that the government must release communications between the agencies and members of Congress. Today's order from the Ninth Circuit gives the government until November 9 to decide.
The Ninth Circuit will consider the government's appeal on an expedited schedule, with oral argument slated for the week of January 11, 2010.
The practical effect of today's order is that important documents shedding light on the telecoms' push for retroactive immunity will not be available to the public as Congress debates whether to repeal that immunity, at least until January.