The Insane Law That Lets Authorities Read Any Email Over 180 Days Old
businessinsider.com
businessinsider.com
Whether people like it or not, rayiner is right on target with what the law says about privacy rights. It isn't that emails can be read because a law was passed to strip their privacy, emails can be read because a law hasn't been passed to strength privacy controls on email.
The same issue occurred with telephones, beepers, cell phones, and more. They were considered fair game in many scenarios until specific laws were passed to make tapping them illegal and require warrants/wiretaps.
"[T]he Constitution is no such instrument as it has generally been assumed to be; but that by false interpretations, and naked usurpations, the government has been made in practice a very widely, and almost wholly, different thing from what the Constitution itself purports to authorize. ... But whether the Constitution really be one thing, or another, this much is certain --- that it has either authorized such a government as we have had, or has been powerless to prevent it. In either case, it is unfit to exist."
After all, if you could do that why would you even need to hold elections at all, if everyone always agreed there'd be practically no need to have decision makers anyways.
Indeed, the Supreme Court's position over the last 50 years has been "reading in" privacy rights in an ad hoc way. If there was a broad right of privacy in there, either explicitly in the text or implicitly in historical practice and understanding, don't you think the liberal Supreme Court's of the 1960's and 1970's that gave us Roe, etc, would have found it instead of having to resort to "penumbras"?
Remember, striking down the actions of the political branches on the basis of unconstitutionality is a subversion of democracy. Sometimes it's necessary, but it's always a subversion of democracy. Calling everything we disagree with "unconstitutional" as ideologues are wont to do, is basically just saying "I hate the political consensus so my ideals should override the voters' decisions."
>If the Constitution said: "Congress shall pass no law... abridging the right of privacy" we'd be in a different boat.
No we wouldn't.[1] We'd still have some people[2] coming along and making whatever arguments are needed in order to preserve and expand the state. One way might be to constantly frame government power only in terms of explicit limits, with the default being otherwise unchecked power. Such limits can then be read to mean whatever those in power wish them to mean.[3]
[1] http://en.wikipedia.org/wiki/Schenck_v._United_States
I declare it because it's true, at least as the law stands right now. The Constitution doesn't just say whatever you want it to say. The fact that the actions are "invasive" doesn't mean they're unconstitutional.
Did you know that a lawyer in a civil litigation can use the power of the courts, through a subpoena, to obtain nearly any information or force nearly anyone to testify as long as it's relevant to a litigation? And that subpoena is enforced through the threat of contempt of court? This is incredibly invasive, yet it's a basic feature of our court system. From an 1802 Evidence textbook: "It is the undoubted legal constitutional right of every subject of the realm who has a cause depending to call upon a fellow subject to testify what he may know of the matters in issue and every man is bound to make the discovery unless specially exempted and protected by law."
The balance that has been struck in our system is not one where the protection of "privacy" trumps all other concerns. Indeed, the scale is heavily tilted the other way: the government, especially pursuant to a court order, has broad powers to seek out information subject to specific protections (4th, 5th amendment).
Perhaps, though that only reinforces Spooner's point. Given the repeated attempts to frame this as only an issue of explicit prohibition, I think that perhaps you're trying to counter an argument I'm not actually making.
Anyone who tries to make a claim of "unconstitutionality" -- or argue against someone making a claim of "constitutionality" -- is wasting their time. The Constitution means precisely whatever the people can be convinced it means, and that in turn is decided largely by a handful of individuals in power. If something as explicit as the Seventh Amendment's "twenty dollars" clause can be argued away, then anything can.
Sometimes, as is (slightly, temporarily) the case now, the people may find an act of the state egregiously wrong, and look for protection in the Constitution. Thankfully we have people like you to remind them that they are incorrect. From this the value of the Constitution is revealed: the imprimatur of legitimacy it provides to those in power when they commit otherwise illegitimate acts.
Seems to be a very good reason why persuasion based around "constitutionality" is not a waste of time.
> and that in turn is decided largely by a handful of individuals in power.
Well, no, its decided by what the people accept, which depends pretty much entirely on the arguments they are exposed to. Certain individuals in power in government and the media have some advantages in terms of inherent trust with some segment of the population on the issue, or just a bigger microphone, but those can be overcome. Even in states where the means of mass communication have been far more tightly controlled than they are in the US, "what the people can be convinced of" has often conflicted with what those in power want; preaching defeatism of the kind you are here is precisely the thing that serves to reinforce the power of the elites, which mostly comes from other people giving up.
Perhaps, but it's not a very good reason to engage in an argument with someone making positive claims about "constitutionality" (e.g., rayiner).
Personally, I'm disinclined to participate in a lie merely in the hopes of yielding a favorable outcome, particularly when doing so cedes the fundamental point of my position. I am content to simply note the lie.
In a broader context, it's particularly instructive to look at the history of Shays' Rebellion, which took place a mere decade after the founding of the US; the people running the government at the time, including founders such as John and Samuel Adams had no hesitation on dropping the banhammer on the rebels, to the point of suspending habeas corpus.
The Constitution was most certainly not written with the intention of producing weak government. Like it or not, it invests the federal government with far-reaching powers, and such limits as it does put in place are partly to limit the Federal government's authority over the states, as opposed to individuals.
It's easy to take what we have for granted, but it's important to maintain perspective. The cause of the republic is not served by those who declare it hopelessly broken and disengage. In the light of historical perspective, you realize that there have been many times in the past when the government was more corrupt than it is now, when society was less free than it is now, and that's a liberating thought because it means that the trend of government does not point inevitably towards corruption and repression.
True, though in precisely the same way his response was not to engage with any of Spooner's actual arguments. I am perfectly willing to yield every one of rayiner's positive claims; they only provide more fodder for the rejection of state legitimacy on normative grounds.
As I understand the law at the time, if the phone company themselves had happened to record the conversation and voluntarily chose to divulge it to the government there would have been no crime, and the evidence would have been admissible.
The 4th Amendment applies to the government, not to third parties, and this is why the government has had to pass laws strengthening privacy protections, even after the Katz decision.
Protocol not designed to protect privacy does not protect privacy: news at 11.
The 4th amendment says: "The right of the people to be secure in their persons, houses, papers, and effects..."
It does not say anything about your bank's, credit card company's, etc, records about you.
The distinction between your papers and other peoples' papers about you is not an "artificial distinction." Where I think you're going astray is the use of the word "public." The 4th amendment doesn't protect all information that you wouldn't want made public. It's narrower than that. Say you visit a prostitute. She keeps a log of the date and length of each visit. That's obviously not "public" information. But it's also not one of your "papers" or "effects" because you neither generated that information nor are you in custody of it. It pertains to you, but you don't get to invoke privacy privileges over all information that pertains to you.
The same is true of bank records, credit card records, etc. When you entrust other people with your information, you can't invoke the 4th amendment to keep them from disclosing it, either voluntarily or pursuant to a subpoena.
[1] Also note that in the 1960's phones were analog devices with no storage capability. When you talk about things like e-mail, which go through intermediate servers and can be stored or copied by anybody in the chain, your reasonable expectation of privacy in that information is very different than what it might be for a 1960's style phone.
In the same vein, then, mail should not be protected, since you give it to the postman to send, so nothing prevents them from opening the envelope, reading everything inside, copy it and tell the police. I don't see how this is any different from taking emails from private email mailbox. In both cases I expect only machines and people that need to read it for purposes of the transmission to access it, and only in parts that are necessary for such transmission to happen, and do not expect them to disclose it to anybody else.
The mail example is interesting. A letter sent via FedEx or UPS is not protected by the 4th amendment. Letters sent via the Post Office are protected, because in that case the "third party" is actually an organ of the government.
I don't see the logic. If you give it to the government, you can expect privacy from the government, but if you give it to somebody else, government can take it? Makes no sense. It's like saying if you confess to the police officer, he can not testify against you, but your own lawyer has to. Completely opposite of what reasonable person would expect.
Yours may be, but it's the Supreme Court's opinion that actually counts.
This law was written when 15GB of email storage was unthinkable,and it needs to be updated to stay with the times.
Full-size image: http://www.flickr.com/photos/whitehouse/4753683646/in/set-72...;
Maybe it's time for the White House to upgrade...
Large organizations move slowly.
It isn't a quick thing because there is so much to be checked/validated/tested/touched. I don't envy the admins that have to deal with it.