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A Big Week for Email Privacy

By Kevin Fayle on June 17, 2009 | Last updated on March 21, 2019
A lot has already happened in the email privacy arena this week.  To begin with, members of Congress are starting to make noise about the National Security Agency's interception of domestic emails, according to a report in the New York Times.

A wiretapping law passed by Congress last year allows the NSA to intercept domestic emails as long as the interception was inadvertent and the byproduct of an investigation of individuals "reasonably believed" to be in a foreign country.

Some members of Congress have started to wonder whether the NSA has exploited the loophole in order to systematically read Americans' emails.
"Some actions are so flagrant that they can't be accidental," said Representative Rush Holt (D-NJ), Chairman of the House Select Intelligence Oversight Panel.

The NSA claims that it has difficulty distinguishing between emails that originate in the United States and those that come from foreign companies. 

Another bit of news to come out this week concerns the 6th Circuit's rehearing of a case involving emails the government definitely knew were domestic.  In 2005, the Justice Department was investigating Steven Warshak for mail fraud, money laundering and other offenses.  They obtained a subpoena ordering Warshak's ISP and Yahoo to turn over electronic messages, but sealed the subpoenas so that Warshak didn't find out about the release of his messages until much later.

Warshak sued, and the district court held that the release of the records most likely violated the constitution.  A panel of the 6th Circuit agreed, but the entire 6th Circuit overturned the decision en banc on procedural grounds.

Now the case is back before the 6th Circuit panel, and the
Electronic Frontier Foundation, the ACLU of Ohio, and the Center for Democracy and Technology have submitted an amicus brief arguing that "the government's seizure of email without a warrant violated the Fourth Amendment and federal privacy statutes, as well as the Justice Department's own surveillance manual."

Kevin Bankston, an EFF Senior Attorney, called the government's actions a "backdoor wiretap," and urged Congress to update surveillance statutes to require more reporting on government use of the surveillance power.

Finally this week, Google announced - in response to an entreaty by concerned computer scientists, law professors and online security experts - that it will offer beefed-up security for its Gmail webmail service. 

Google plans to implement Hypertext Transfer Protocol Secure (HTTPS) technology as a default option for the service.  Gmail users can currently turn on the HTTPS option, but it is disabled by default.  HTTPS protects emails while in transit, encrypting the contents and keeping them away from prying eyes.

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