Monday, July 9, 2007

Judges OK warrantless monitoring of web use

According to a San Francisco Appeals Court ruling Friday, internet users should have "no expectation of privacy":

Federal agents do not need a search warrant to monitor a suspect's computer use and determine the e-mail addresses and Web pages the suspect is contacting, a federal appeals court ruled Friday...

The ruling "further erodes our privacy...The great political marketplace of ideas is the Internet, and the government has unbridled access to it," said defense lawyer Micheal Crowley.

This goes contrary to last month's U.S. 6th Circuit Court of Appeals ruling that e-mail messages hosted online should have the same constitutional privacy protections as telephone calls.

From an LAT Editorial:

The 6th Circuit decision is faithful to a long tradition of adapting 4th Amendment protections to new technology. The framers of that amendment may not have foreseen Alexander Graham Bell's invention of the telephone, but that didn't prevent the Supreme Court from ruling in 1967 that warrantless wiretapping violated the Constitution...

Nevertheless, this decision breaks new ground, which may be temporarily plowed over if the government succeeds in dissolving the injunction on appeal.

via ITBlogWatch, law professor Susan Crawford says:

Email messages, unlike transactions disclosed to a bank, are the kinds of things that we expect are and will remain private ... the mere involvement of an intermediary doesn't destroy this expectation of privacy ... [It's] a question that is central to law enforcement, and we can expect that this decision will be challenged in a hundred ways. We depend so much on intermediaries, and the Sixth Circuit decision stands firmly on ground the government won't like.

Unfortunately, not all Sixth Circuit decisions have been so privacy friendly. The Cincinnati based appeals court handed down an extremely disappointing ruling Friday in dismissing the ACLU's case challenging the NSA's warrantless wiretapping program--arguably not because the program was deemed legal, but rather because "plaintiffs could not state with certainty that they had been wiretapped by the National Security Agency."

ACLU Legal Director Steven R. Shapiro slammed the ruling:
As a result of today's decision, the Bush administration has been left free to violate the Foreign Intelligence Surveillance Act, which Congress adopted almost 30 years ago to prevent the executive branch from engaging in precisely this kind of unchecked surveillance. It is important to emphasize that the court today did not uphold the legality of the government's warrantless surveillance activity. Indeed, the only judge to discuss the merits clearly and unequivocally declared that the warrantless surveillance was unlawful.

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