E-mail Privacy

The good thing about lower courts is that when they make a really stupid decision, they can be overruled. I blogged a while back about a court that decided that an e-mail provider can read his client's e-mails for any reason. Now the Justice Department and some civil liberties groups are trying to get the case reheard.

I was just struck by something when I reread the capsule description of the case in this article:

Councilman was charged in 2001 by the U.S. Attorney's office with violating the Wiretap Act, which outlaws most interceptions of phone calls and e-mails. The case never made it to trial, as the court dismissed the charge.

A three-judge panel from the 1st Circuit Court of Appeals upheld the dismissal, arguing that the wiretap law did not apply since the e-mails were stored, even if only for seconds, on Councilman's computer.

It seems to me that a surprising number of legal problems are created by the way computers deal with moving files around. When I started to study computer programming in college, I learned to adjust to the fact that you can't directly move things - a file, a stored variable, or anything else - to a different memory location. That's just not the way computer memory works. Instead, you simulate the process of moving by making a copy to the location you want the thing in, and then deleting the original. Copying is a fundamental activity of a computer, and moving is only derivative. It's not at all like the world of physical objects, where moving things around is trivial (unless they are very heavy) and making a copy is cumbersome.

So, when you try to apply laws created for the physical world to the digital world, you come up with all kinds of problems. The Wiretap Act may not apply because e-mail files are almost always "stored" somewhere instead of "in motion". Taking a legally-downloaded mp3 from your computer and putting it on your portable device can be blocked by a DRM scheme designed to prevent illegal copying. And so forth. It's really quite troublesome. Much more so than I thought during Programming 101.

Comments

[Rick Barton]

Two points: It seems that the question of an e-mail provider reading his/her client's e-mails should be determined on a contractual basis between the provider and the client.

Might the Justice Dept. be taking the position it is to mitigate the control of the service provider so as to enhance its own leverage, vis a vis the right to read people's e-mails?

[phil]

On the first point, I agree with Rick that the privacy should be a contractual thing between provider and client. That is, if you want a provider to be able to read your email, sign up with the "I can read your email" provider. Decent providers will pledge not to and thus open themselves to lawsuits if anyone is found reading email.

[raymond_m]

What strikes _me_ is that "the Justice Department and some civil liberties groups are trying to get the case reheard." Somehow that combination does not compute.

[Neb Okla]

Just a reminder, S/MIME digital ID's are free and are supported by a vast majority of email clients. This allows you to make your emails tamper proof and even encrypt them across a wide variety of systems - without the need to install additional software.

As a former email administrator at a web hosting provider, I highly reccomend digitally signing and encrypting your email whenever possible - for the same reason you should shred lots of benign materail along with sensitive stuff.

Here is a decent tutorial on the setup process.

[Geophile]

Hey, what about the US Postal Service? It takes their equipment to scan and sort a letter, their trucks and planes to get it to the destination, and their personnel to do it all. Is the only thing standing in the way of the PO reading my mail the mere matter that I've paid for postage, thereby achieving ownership of the item despite their ownership of virtually all of the infrastruction necessary to send it? (...and not only ownership the infrastructure, but also operating a quasi-monopoly?)

[Geophile]

Eh, infrastructure, rather.

[Shannon Love]

Hanah Metchis ,

I think you're correct that contemporary DRM and other related legal frameworks fail because they try to force non-zero sum property into a zero-sum mold. They attempt to treat digital entities like "files" as if they were the physical entities they are named after.

I don't know what the best solution is but as a libertarian I am very concerned about the long term implications. The free-market can only operated within an environment of strong property rights. The weaker the property rights the weaker the free-market. Historically, if the free-market cannot manage an area of the economy then the State takes it over.

My fear is that long term the lack of digital property rights will make the State the primary producer of digital media and information. The State won't have to censor anybody but as the only entity that can compel the funding of the production of it's media it will have the overwhelmingly loudest voice. It will be to information production as the welfare state is private charities today. It will swamp private sources.

Cartography and surveying became socialized and a State function because no one could copy protect maps. Meteorology is also a State function for the same reason. There is really no reason why in an era of pure digital media every other type of information will not suffer the same fate.