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Chesbro On Security
If the government wants to compel an on-line service provider, like Yahoo or Google, to turn over your e-mails, they need a warrant. That is the industry-accepted best practice, implemented by almost every major service provider. Moreover, it’s what the Fourth Amendment requires. However, there are always a couple exceptions to the warrant requirement, where only a subpoena is necessary for the federal government to gain access to your private e-mails.
The first is e-mail that you have opened up (and presumably read) that is stored on a remote system (i.e. in your Yahoo or Gmail accounts). The second reason is when an e-mail remains unopened on a remote system for further than 180 days. A warrant is a courtroom order that authorizes law enforcement personnel to search or seize property or arrest a person suspected of committing a crime.
The U.S. Constitution takes a warrant to protect an accused person’s Fourth Amendment privileges. Unlike with a subpoena, a judge should always issue a warrant — and only when the request fulfills the “probable cause” standard. Probable cause requires some form of evidence, not simply a suspicion of a crime. Data seizure laws are more complex than can be described in the couple of paragraphs above, but there are a few plain things that people should be aware of in regards to personal data privacy.
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E-mail in transit, and e-mail stored on the remote system for 180 days or less, as long as the e-mail was not opened, requires a warrant to obtain its content. E-mail that you have downloaded and store on your home computer also requires as a warrant if the government wants to come into your home and seize those e-mails.
Where we lose our legal protections is directly after we open and read an e-mail and then leave that e-mail on a remote control system, or if we leave an unopened e-mails on a remote system for more than 180 days. In such cases a government official need only declare that your e-mail contains “information that is relevant to a study”, and your e-mail company is compelled by subpoena to hand your private messages to the national government. Never leave any e-mails on a remote system for further than 180 days.
Once you have opened up an e-mail, delete it from the remote control system. Never leave opening e-mail stored on-line. Use an encrypted e-mail service. Strong encryption shall help protect the content of your e-mails. Use an e-mail service in a country apart from where you reside. The House’s unanimous vote on the Email Privacy Act this past year demonstrated bipartisan contract that the e-mails in your inbox must have the same privacy protections as the documents in your table drawer. Urge the Senate to quickly complete the H.R.