Is Your Email Private Robert Sheridan FawCawnahs firstname.lastname@example.org
I caught part of the Congressional committee hearing on this on C-SPAN the other day. There was an argument that struck me. The gist of it was something like this:
The law prohibits general searches without warrants. That's something that British troops did to colonists' homes that led to (1) the Revolution, and (2) to the Fourth Amendment to the Bill of Rights, prohibiting unreasonable searches and seizures except on probable cause and a warrant or other justifiable circumstances.
That means the cops can't search all the houses in your block just because they got a true report that someone is selling drugs, holding guns, or even holding a kidnap victim and threatening murder. They can knock on doors and ask if they can come in. Between you and me, they get a little more aggressive than this depending on how serious the circumstances are. But the general rule is that they can't just search everyone.
They also can't stop all the cars coming off the bridge to see who's DUI. Well, lately they can, provided they advertise this is what they're going to do so people can decide to stay home or take another route.
But the rule is the same. No general searches.
This also means they can't read everybody's mail looking for the crimes of a few.
This should also mean they can't listen to all our phone conversations, or read all our email, hoping to catch some criminals.
That's what the beef about Carnivore is all about.
Carnivore is a computer screening program that reads the sender and addressee on all the email. If Joe Blow is dealing in, say, kiddie porn, they, the FBI, gets to see who Joe Blow is writing to, and who's writing back. The program is not supposed to read the contents of everybody else's mail, only Joe Blow's.
Do they need a search warrant to use Carnivore like this? I forget. Probably. But the warrant will only cover Joe Blow's email, not the people he corresponds with, or you or me.
When Carnivore starts reading our mail, or even the fact that Joe Blow emailed you and you wrote him back, suddenly you're on Big Brother's list. At least that's the argument, or the implications, as I understood the discussion and a news article I read.
The fact is that the Fourth Amendment's guaranty against unreasonable search and seizure were pretty much gutted and rendered full of holes first by Prohibition (searching rumrunners' property and trucks) and then by the drug smugglers of the last thirty years or more.
There's some protection, but it's been narrowed down. If you're up to something, a motion to suppress for illegal search is hard to get granted nowadays.
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