Dec 15 2010
A few years ago Mike Rothman over at Securosis dubbed me “Captain Privacy”. And thanks to my wife’s sense of humor, I even have a cape and domino mask (but no tights, for which everyone is thankful). I like my privacy and I often argue against movements by our government to erode the controls protecting our privacy. And this is one of the more subtle points that Mike and other people miss about me: I am not arguing against the government having the ability to spy on people when they need to, I’m arguing for strong controls around the ability and judicial oversight to ensure that the ability to monitor citizens isn’t abused. To some it’s a very subtle difference, but to me it’s an incredibly important distinction.
So it should come as no surprise to anyone that I’m thrilled that the 6th Circuit Court of Appeals has ruled that email is protected by the Fourth Amendment. For years now law enforcement has been arguing that there should be no expectation of privacy for your email on corporate and cloud services (like Gmail) and that there was no need to get a search warrant prior to seizing copies of email records from service providers. In other words, since your email is hanging out on a public service provider’s servers, they felt they could just walk in at any time, demand a copy of your email and no one would tell you until you were served up with an arrest warrant. No due process, no judicial oversight, just quietly take what you want whenever you want it. Understand why the police would want this power, but I also believe that it’s something that’s just waiting to be severely abused, if it hasn’t been already.
This is an appeals court, so it is possible that the ruling could be overturned by the Supreme Court if it got to that level, but it’s unlikely. The 6th Circuit Court made it very clear that you and I have every right to expect our email to be as secure from covert observation as our physical mail. Which means that police and federal officers can monitor it if they can prove to a judge that it’s necessary and appropriate. And that’s all Captain Privacy really wants for Christmas, the knowledge that someone is double-checking what our LEO’s are doing and making sure that due process is being followed.