Comment by pappyo | Hacker News Reader

Comment by pappyo | Hacker News Reader

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>they want the 4th amendment benefits of treating the cloud like real world private areas (e.g. bank lock boxes), without any of the obligations that come along with that.

and...

>That said, I think they're ultimately going to win.

Warning: Total Conspiracy Theory Ahead

Could this be an end-around by Microsoft to eliminate one of Google's main revenue streams? Follow me for a second.

1. Let's assume Microsoft wins this court case. By doing so, e-mails will be afforded the same protection, under the law, as physical letters.

2. A Microsoft backed plaintiff sues Google for data-mining her email's content, arguing under the same 4th Amendment ruling.

3. After years of legal procedures and court battles, Google (and all other e-mail providers) are forced throw away their master keys. Essentially all email is blind to the providers.

4. Google loses one of their larger revenue streams.

Everyone loves a good conspiracy theory, so indulge me for the moment. Why would this not work (And for the record, I'm sure it wouldn't. But I would honestly like to know why.)?

I think it goes off the rails in step 2. Private organizations are not bound by the 4th amendment. For the most part, the constitution defines the powers and limitations of the federal government (and to some extent the state governments). The government is the entity bound by the 4th amendment, not private companies.

I think a more likely scenario is that we end up with a court ruling that says something along the lines of: "In order to preserve the customer's 4th amendment rights, the company hosting the e-mail mustn't be using it for business purposes." So, Google wouldn't be able to simultaneously mine your e-mails and guarantee that your e-mails are protected under the 4th amendment.

>I think it goes off the rails in step 2.

This went off the rails well before I started to write it. But let me push back on your thoughts.

If I am understanding Microsoft's argument correctly for this court case, they are trying to equate e-mails to letters. And, by extension, equate themselves to UPS/USPS/FedEx whathaveyou. E-mails are private correspondence, just like letters in the post. And please, correct me if I'm wrong in this assessment.

It is also a felony in the US to open someone's mail. So wouldn't that same protection exist in email? Which would mean nobody can look at an email correspondence unless they were either the sender or receiver of said email.

I think the snail mail to email analogy is flawed... snail mail has an envelope, plain text email does not. However, a postcard does not generally have an envelope...

So here are some better analogies:

snail mail letter == encrypted email

snail mail postcard == plain text email

publicly posted diary == plain text gmail

(I've yet to read TFA, but:)

I'm all for privacy in email, but if we're doing analogies, unencrypted email is more like postcards, than letters. And metadata is more like what's written on the letter than in it. (And SMTP over TLS would be like the mailboxes you're not allowed to look in, unless you're delivering mail, or are the recipient...)

As far as I can gather, the US has pretty shoddy laws guarding personal information from corporations -- so a change wrt email might be a win. But I don't know if this is the best way.

As long as there doesn't appear to be any viable way to get most people to use gpg/smime -- I'm not sure we're likely to get anywhere. Perhaps that is what Microsoft should do: leverage S/MIME for outlook.com (with the caveat that they would have to keep the encrypted private keys, and being a web service, could be forced to backdoor the clients in order to get the pass-phrases/passwords...).

Hm, I wonder if there's an IMAP extension for storing encrypted key-pairs?

The fourth amendment doesn't protect you from other people reading your post. It probably _does_ protect you from the government reading your post (though, apparently not protect you from the NSA logging all your mail[1]).

It is a crime for other people to read your mail, though that protection comes from the legislative branch, not the constitution. Specifically, Title 18, Part I, Chapter 83, § 1702 [2]. If you could convince a judge that § 1702 applied to e-mail, you might be able to ruin Google's day. It'd be a very different legal argument than the fourth amendment legal claim. Whatever comes from Microsoft's legal arguments about the 4th amendment won't have a bearing on this line of argument.

I still think the best avenue for a conspiracy theory motive for Microsoft is to get a ruling that says "if the e-mail provider examines the communication for any purposes other than facilitating mail delivery, then the communication loses its 4A protections." That would allow other competitors to advertise strong 4A protections, and force Google to choose between that sweet, sweet personal data or also advertising 4A protections.

[1] http://www.nytimes.com/2013/07/04/us/monitoring-of-snail-mai...

[2] http://www.law.cornell.edu/uscode/text/18/1702

It won't work because Gmail users have agreed to what Google is doing.

(Also, as I understand it, Google works hard to limit access to email, but I don't think they have anything you would want to describe as a master key. It would be "Google deletes all customer data", not "Google blinds itself to customer data".)

I think you give Microsoft too much credit. But, you correctly identified the importance of this case.

Interestingly, I predict that if your outcome were to happen then Google will rapidly invest in Gmail to turn it into more than an email system, so that they'd have reason to argue that the messages are business records.

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