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Of all the constitutional guarantees, one most Americans are familiar with is the Fourth Amendment. In its entirety, it states, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” But that protection may not fully apply to Web-based e-mail, a federal judge in Oregon has ruled.
The case involved a Gmail and another web-based email account and whether the government can simply issue a search warrant to the internet service provider without notifying the e-mail account users. U.S. District Judge Michael Mosman said the Fourth Amendment provides protection “for homes and the items within them in the physical world.” But when a person is using a web-based e-mail provider, “the user’s actions are no longer in his or her physical home; in fact he or she is not truly acting in private space at all,” Mosman wrote. Instead, users voluntarily convey and expose their e-mail to a third party, which becomes the holder of the information. As the holder, it was enough for the government to serve it with the search warrant in the context of the particular case.
That wasn’t the judge’s entire rationale. Mosman pointed out that Gmail’s privacy policy, like those of most internet service providers, says Google can share a user’s personal information if it has a “good faith belief” that disclosure is “reasonably necessary” to satisfy legal process or an enforceable governmental request. That means, according to Mosmon, that Gmail users “are, or should be, aware that their personal information and the contents of their online communications … can be shared with the government under the appropriate circumstances. … Some people seem to think that they are as private as letters, phone calls, or journal entries. The blunt fact is, they are not.”
The potential impact of the ruling could be vast. Look at Google alone. It allows you to store not only e-mail but documents and your personal calendar. Flickr, Facebook and the like all allow online storage of photos. Thus, once again, we confront the interplay of our lives in cyberspace and the real world and whether the former entitled to the same protections.
An additional twist in the case of electronic information is that no property is actually taken or seized as that term is used in the Fourth Amendment context.
In re United States, Nos. 08-9131-MC, 08-9147-MC (D. Ore. 2009)
It seems like much of the last month has been devoted to reading not-yet-released items for review. That also impacts the bibliolust list because the ARCs, proofs and the like often show up far enough in advance that they don’t make the list. So, I’m going to try to do a better job of listing those books coming out in the month if I haven’t read them yet.
That said, this month’s list strikes me as having excellent variety, perhaps truly running from the sublime to the ridiculous.
The Country Where No One Ever Dies, Ornela Vorpsi — This novel ended up on my review list because my world lit interest combines with a slight fixation with life in post-Communist Albania. Add the fact that there’s quite a buzz about Vorspi’s writing and it’s likely I’ll be opening this today or tomorrow.
The Good Soldiers, David Finkel — The uniformly positive reviews this book has received since its release in September, led me to get on the library reserve list for Finkel’s account of his time with an Army infantry battalion during “the surge” in Iraq.
The Journey of Little Gandhi, Elias Khoury — Having enjoyed some of his other works, I’m intrigued by this novel about the civil war in Beirut, Khoury’s birthplace.
Look at the Birdie: Unpublished Short Fiction, Kurt Vonnegut — Given how muhc I love Vonnegut, I am embarrassed that I haven’t bought and read this already. But pending reviews made it difficult, although I hope to soon remedy my lapse.
The Three Stooges Scrapbook, Jeff Lenburg, Joan Howard Maurer & Greg Lenburg — I freely acknowledge that I’m a long-time hardcore Stooges fan. So when the opportunity to review an updated version of this examination of their work arose, I sointenly couldn’t resist.
Good morning, sir. I’m the census taker. Are you married or happy?
Moe Howard, No Census, No Feeling
You may recall I posted last month about how a U.S. Senate Judiciary Committee amendment to legislation creating a federal “reporters privilege” appeared to require that a person work for the mainstream media, thereby excluding most bloggers. Now it appears the committee will do a near complete reversal.
Sens. Charles Schumer (D.-N.Y.) and Arlen Specter (D.-Pa.) both announced yesterday an agreement with the White House over national security concerns the White Houses said the “Free Flow of Information Act” raised. The last paragraph of the Senators’ press release noted that the new version of the bill “revisits the change made to the definition of journalist in the September 24 Manager’s Amendment by removing the requirement that the journalist be a salaried employee or independent contractor for a media organization. This should permit freelance authors to be covered, and it also provides the potential for journalists publishing on blogs to be covered as well.”
Although I have been unable to locate a copy of the revisions online, reports indicate that the focus returns to the type of activity a person is engaged in, not who employs them. The WaPo reported the language of the new version applies to those with the “primary intent . . . to disseminate to the public news” if they had that intent from the “inception of the newsgathering process.” That is a test at least three federal courts of appeals have used to determine who can invoke the privilege and was part of an amendment Sen. Specter offered on the Senate floor in late July 2008 to the version of the bill introduced in the last Congressional session.
The 2008 version of the bill with this language died in the Senate. Maybe the compromise with the White House bodes better for the bill with the reported changes. Still, even this version would differ from the one approved by the House and any version that becomes law would apply only to federal authorities, not state and local ones.
UPDATE: The Citizen Media Law Project blog has the new language.
And it occurred to me that there is no such thing as blogging. There is no such thing as a blogger. Blogging is just writing — writing using a particularly efficient type of publishing technology.
Simon Dumenco, “A Blogger is Just a Writer with a Cooler Name”
Bulletin Board
Worthwhile Reading in the Interweb Tubes
Interweb Headline of the Week
Interweb Line of the Week
Bookish Linkage
Nonbookish Linkage
I don’t believe anything, but I have many suspicions.
Robert Anton Wilson, Thoughts
I’m thinking a $16.5 million verdict isn’t unexpected when jurors ask for a 10-digit adding machine.
Woman arrested for offering sex for World Series tickets gets 800 new Facebook “friends.” I wonder why. (Via.)
Dumb legal marketing idea # 36,926: Lawyer-referral site tries to generate more business for immigration lawyers by offering a make-believe phony iPhone app called iCoyote, putting together everything “a real immigrant smuggler” needs, such as iWife to “take care of finding marriage prospects for you.”
Given the “masks” these guys used, it should come as no suprise that one of the charges is burglarizing driving while intoxicated.
The lamest murder excuses, although I think the next to last one might actually be considered justifiable homicide in some circles.
Follies on the electronic frontier: The Electronic Frontier Foundation has established a Takedown Hall of Shame. (A “takedown” notice is what a copyright holder sends your internet service provider when it claims material infringing on its copyright has been posted online.)
If there are no stupid questions, then what kind of questions do stupid people ask? Do they get smart just in time to ask questions?
Scott Adams (“Dogbert”), Shave the Whales
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