Tuesday, June 25, 2013

Unwarranted email-snooping ruled unconstitutional in 2010

I was poking around in some 4th Amendment case law online and came across a relatively recent (2010) ruling (.pdf) by the United States Court of Appeals for the Sixth Circuit. It's a solidly pro-civil liberties ruling that seems tailor-made for the files of whoever wants to challenge the legality of the NSA's unwarranted domestic surveillance programs.

The case was United States. v. Warshak et. al., and it involved the prosecution of Steven and Harriet Warshak, owners of Enzyte (a herb-based "male enhancement" supplement). The court upheld Warshak's conviction, more-or-less, because of the good-faith exception to the exclusionary rule (whereby law enforcement is recognized to have been doing its job and following the law as it existed then).

(I will note here that I vehemently disagree with the so-called "good faith exception".)

However--and this is encouraging--the court ruled as unconstitutional the very statutes that enabled the prosecution's secret evidence-gathering.

Circuit Judge Keith, concurring (emphasis mine) (the last couple of lines are my favorites):

     Following NuVox’s policy, the provider would have destroyed Warshak’s old emails but for the government’s request that they maintain all current and prospective emails for almost a year without Warshak’s knowledge. In practice, the government used the statute as a means to monitor Warshak after the investigation started without his knowledge and without a warrant. Such a practice is no more than back-door wiretapping. I doubt that such actions, if contested directly in court, would withstand the muster of the Fourth Amendment. Email, much like telephone, provides individuals with a means to communicate in private. See Warshak v. United States , 490 F.3d 455, 469-70 (6th Cir. 2007), vacated , 532 F.3d 521 (6th Cir. 2008) (en banc). The government cannot use email collection as a means to monitor citizens without a warrant anymore than they can tap a telephone line to monitor citizens without a warrant. The purpose of § 2703, along with the Stored Communications Act as a whole, is to maintain the boundaries between a citizen’s reasonable expectation of privacy and crime prevention in light of quickly advancing technology. S. Rep. 99-541, at 4. To interpret § 2703(f) as having both a retroactive and prospective effect would be contrary to the purpose of the statute as a whole.

     While it was not the issue in today’s decision, a policy whereby the government requests emails prospectively without a warrant deeply concerns me. I am furthermore troubled by the majority’s willingness to disregard the current reading of § 2703(f) without concern for future analysis of this statute.


Image via techpp.com.


  1. So if this ruling is on the books, why are other laws allowed to circumvent it?

    I don't understand any of this shit. There are always contradictory laws/rulings. Thank god I'm not a lawyer. All I know is we're getting screwed six ways to Sunday and the 4th Amendment is practically non-existent.

    1. Well, what this suggests to me is that the NSA's activities were, and are, unconstitutional--at least as far as the mass-scale email snooping (on everyone!) is concerned. But because the surveillance was not known about until recently (on a public scale, I mean), there have not been any legal challenges to it. Yet. The agency for the most part just did what they were told the FISA court okayed, I think. But reading the FISA stuff Glenn published did not bring me any closer to understanding how siphoning off the entirety of people's emails for analyses could possibly be legal.

      I am stone-cold convinced it's all unconstitutional--the email snooping, the phone stuff, texts, everything. For one thing, there is no specific threat aligned with--and no start and end date for--the millions of snooping events. Just rolling renewals of the permission which itself is vague. And blanket-like in nature. And, as the judge slammed above, "prospective" in nature, which is alarming and quite outside the boundaries of permissible surveillance.

  2. I believe that's Snowden's contention -- that it's illegal.

    But if it is, they'll just pass laws making it legal. (In fact, doesn't the Patriot Act specifically legalize formerly unthinkable, illegal actions?)

    As with the Nazis -- and yes, all you Godwin screamers out there can stuff it -- when you want to dismantle the rule of law, you pass laws to do it. You mire it in bureaucratic jargon and legalese. Then you can say, "See, everything's legal!"


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  3. Of course. Of course they'll do that. They can always scurry off and change the law to placate people, but allow all the evidence gathered under the previous, utterly shitty law to stand and be used to go after people. That's why I hate the Good Faith exclusion--it's one step away from carte blanche to do whatever you want, then say, "Oh, I didn't know! I was acting in good faith!"

    But when it benefits them, not the individual, they do stuff that they fucking KNOW is ex-legal, then when they're caught, write laws that protect them and their aiders and abetters retroactively, as they did with telecom immunity.

    But there is a difference now: they've been caught red-handed at all of this. And at least some (sadly, not all or even most) Americans will challenge them. There are so many people rolling over, though. It's depressing as hell.

  4. Yes, and we know who's rolling over the most -- the bots, and you know which ones I mean. For those who don't, let me spell it out:

    "Republicans bad, Democrats good. Actions done under Republican administrations crimes, actions done under Democratic administrations not crimes -- just thingies. Pragmatism. Realism."

    See? It's easy.

  5. From the NYT, an op-ed arguing that the massive surveillance is indeed illegal (but don't worry, bots, it's still okay, because your fearless leader says so):

    The Criminal N.S.A.
    Published: June 27, 2013


  6. This is so fucking great:

    '. . . Alvarado, who called threats from the US over trade arrangements a form of "blackmail,” said Ecuador’s government would not only willingly accept the loss of approximately $23 million in trade benefits, but in addition would offer a gift, in the form of an aid package of the same amount, that would be directed to provide human rights training in the United States.

    'According to reports, Ecuador indicated the money could be used to help the US address its recent problem with torture, illegal executions, and the attacks on the privacy of its citizens . . . .'


    1. Oh my, that is delicious. Absolutely delicious.

      Chickens, roost, etc.