7 ms·

Prosecutors Are Reading Emails From Inmates to Lawyers

142 points by growlix 12y ago

Teodolfo 12y ago
Bar associations should demand that lawyers allow clients encrypted email communication. The adoption problem for encrypted email (all encrypted controlled by the client machine using open source software so google or whoever doesn't also have access to the plaintext) is so hard because it takes BOTH parties to keep communication secure. If all lawyers had to do this, people would become much more aware and maybe demand their medical and tax information sent over email also be encrypted.
- Fuxy 12y ago
  Encryption should be mandatory for all sensitive data if it's not encrypted it's public. However judges allowing the emails to be read sounds really stupid to me it's obviously protected by the attorney-client privilege. Most obvious breaches in law are motivated by prosecutors as a lack of staff or convenience these days. I don't care how understaffed you are or how inconvenient it is that is the law and you have to follow it or at least that's how it should be but apparently judges can choose which laws they want to follow. PGP would be great in this situation, your attorney could give you a USB stick with the public and private keys encrypted by a password of your choice and you could use it to send messages to him. Even if the warden or guards were to confiscate the USB stick they still wouldn't be able to decrypt the messages without the password which is protected by law because it's something only you know. And because of how PGP works the messages sent by you to your attorney can only be decrypted by his private key. Once encrypted even you can't decrypt them anymore since you are using his public key to encrypt the message.
diafygi 12y ago
http://youtu.be/WTPimUSIWbI http://youtu.be/WTPimUSIWbI Attorney client privilege is one of the biggest fallouts from mass surveillance. Earlier this year there was a legal hackathon at Mozilla where I tried to make a product to help that.
- NickSharp 12y ago
  Thanks for making that! Looks sweet, is it ready for use in the wild? (You mention making it user friendly with a link...) Are there other encryption-type solutions for this problem? Something usable by people locked up in jail who may not be computer savvy. I know a public defender who might be interested.
  - diafygi 12y ago
    Definitely not ready for prime time, but it works with links now (see the example link in the video description). However, it probably wouldn't be very useful for people in prison because it requires each party to have a dropbox account. Another project that might be relevant is miniLock, but it's still a ways away from being ready.
RexRollman 12y ago
I worry for this country.
- venomsnake 12y ago
  The executive, LE and intelligence have gone berserk, the congress is paralyzed, courts make corporations more people than actual people and still US is better place than anywhere on the earth.
  - noir_lord 12y ago
    > and still US is better place than anywhere on the earth. Not really, this is a clear case of American Exceptionalism if unintentional. I'd take Germany, Iceland, Sweden, Switzerland or the Netherlands over living in the US if I had the choice.
    - venomsnake 12y ago
      I am not a US citizen and live currently in EU. Europe is not big on the whole freedom of speech stuff.
      - cmdkeen 12y ago
        You're rather oddly equating free speech as what makes the US "the best place on earth". Which is an odd one on an article about the US having an impaired legal system, in the UK there may be more criminal sanctions against certain speech but you'll also get very well defended in a much fairer legal system. Take the instance of the Robin Hood Airport Twitter trial -in the US you'd be relying on a public defender to make a 1st Amendment argument - win and you're grand, lose and the American justice system would bury you as a terrorist.
        refurb 12y ago
        There are plenty of other examples of rights offered by the US justice system that you don't get in other countries: double jeopardy, how long you can be held before being charged, etc, etc The US might not be perfect (who is?) but it offers some of the highest levels of protection for an individuals rights of any country.
YokoZar 12y ago
Wikipedia tells me that both of the judges that ruled emails are unprivileged were born in 1946. The judge who ruled against the government, however, was born in 1955. I don't think this is a coincidence. I'd be surprised if the former two judges even used email at all.
- anigbrowl 12y ago
  I really don't think that makes much difference. I'd be much more interested in the judges' political affiliations. The notion that attorney-client communications are privileged, regardless of medium, is not a new concept.
  - crdoconnor 12y ago
    IIRC some judges consider email to be something like a postcard or talking in public.
    - rapala 12y ago
      In a way an unencrypted email is like a postcard. Anyone who gets their hands on it can read it without "opening" anything.
      - spacemanmatt 12y ago
        you're missing the point.
      - e_proxus 12y ago
        In the same way an unencrypted telephone call is also like a postcard (or posting a tape), but we still have laws protecting that information flow, like the client attorney privilege. What we are seeing now is just a power grab from governments and organizations to have "novel" forms of communication classed as less protected so they can reap the benefits of being able to intercept it. This is exactly how a legally protected and democratic society breaks down. There are only two ways to solve it. Either protect all forms of communication without discrimination, or use or invent technology to prevent it being possible in the first place (and not outlaw that technology). There are no other ways.
Natsu 12y ago
> Especially since he is acting as a public defender in this case — meaning the government pays him at $125 per hour — Mr. Fodeman argued that having to arrange an in-person visit or unmonitored phone call for every small question on the case was a waste of money and time. The juncture of these two factoids struck me as odd.
- psutor 12y ago
  The article expects you to know that $125/hr is way below the normal rate for a criminal defense attorney in a major city, which I would expect to start at about $300/hr.
  - x0x0 12y ago
    and $300/hr is for the medium ones. If you're looking at serious time and have the resources, you're probably paying $500+ for an attorney experienced in criminal defense trials and your type of claimed lawbreaking.
  - enjo 12y ago
    I'm a very well paid software engineer.. I apparently can't afford to hire a qualified defender if I find myself in need. I figure a defense is a minimum of 500 hours, so even at $300 that's $150,000. I have no idea where I get that type of money from. Our justice system is severely screwed.
    - rhizome 12y ago
      A 500 hour billing for defense would be pretty serious, so if that's going to be a problem for you here's a heads-up to ixnay on the crime you're committing that's going to require brand-new Supreme Court-favorable legal theories for acquittal. That's over 3 months of 40-hour weeks dedicated to just your case. I know lawyers bill like crazy, but still.
      - mrkurt 12y ago
        Avoiding crime isn't really an effective way to avoid needing a lawyer, unfortunately.
jroes 12y ago
I was listening to NPR recently and there was an interview with a former Clinton administration official [1] who mentioned almost in passing that prosecutors regularly infringe on the right to privileged conversation between a defendant and their lawyer. Specifically, he mentioned that the room you are given with your lawyer has paper thin walls that the police and prosecutor folks can hear through easily, and when in jail there is no way to have a real private conversation with your lawyer as well. [1] http://wfae.org/post/webb-hubbell http://wfae.org/post/webb-hubbell
- jpatokal 12y ago
  I'd hope that's not admissible as evidence in court though, while in this case the emails would apparently be.
  - defilade 12y ago
    Think of it this way: you're in jail and you're talking to your lawyer about what he thinks the prosecutor's strategy will be, and how he's going to defend you against it. That has nothing to do with evidence admissibility but could still be damaging to your case if the prosecutor finds out about it.
    - saraid216 12y ago
      That's roughly equivalent to discovering the identity of someone on the internet who you're arguing with and using it to "win" the argument.
      - withdavidli 12y ago
        Why do you think this is roughly equivalent? It's not about knowing the identity of the person, it's knowing how they are going to proceed in arguing their case. Setting up an argument takes a lot of time, it's their strategy for winning a case / defending their client. Knowing this beforehand will put one side at an advantage in preparing their case and specifically aim at any faults in arguments. Also why is "win" in quotes? There's generally no winners in flame wars, but in a court of law decisions are made on who wins and loses unless there's a mistrial/deals being cut by both sides. So being able to concentrate efforts directly preparing against a known strategy that the opponent is using is a big advantage.
rtpg 12y ago
>She seemed to take particular offense at an argument by a prosecutor, F. Turner Buford, who suggested that prosecutors merely wanted to avoid the expense and hassle of having to separate attorney-client emails from other emails sent via Trulincs. Would it be that hard to specify one e-mail address as a "priviledged address" (with a signature from the lawyer about such) and filter out those? It's really surprising how people can go to court and argue such claims.
- spacemanmatt 12y ago
  That's why the judge felt insulted.
Canada 12y ago
"...budget cuts no longer allow for that, they said." Is the amount of money being spent on prisons in the United States really shrinking? Honestly, I have no idea.
- anigbrowl 12y ago
  I think it's more the amount of money bugeted for prosecutor's offices. Normally things like this would go past a review attorney whose job is is to separate privieleged communications from non-privileged and pass only the latter to the prosecutors, but those are the bottom-rung jobs and the first to go when there are budget cuts. Not many politicians are interested in the legal problems of federal prisoners, standing up on this sort of issue is a sure way to be labeled as 'soft on crooks' by your electoral opponents. Chances are that this won't get fixed until a sufficiently high-level court rules on it, at which point we'll hear a lot of whining about 'activist judges' and so on. What a revolting development.
- yardie 12y ago
  No, just more things being illegal. More prisons, more prisoners, same amount of money. I seriously doubt any prison has had a budget cut. No politician wants to be seen as soft on crime. And since they can't scale it back the budget stays status quo.
xmstr 12y ago
In most circumstances I am all for attorney-client privilege. But if you are in jail or prison and provided a medium to communicate to the outside world and that medium requires you to accept a consent to monitoring agreement before each use, then you should have no expectation of privacy regardless of whom the communication is with. The prison system has proper ways to initiate secure attorney-client communication and these people failed to use it, that’s their problem. However, I do think the law needs to be updated to allow for secure email communication between the attorney and client, but until that occurs they need to live within the confines of the law.
pessimizer 12y ago
If inmates are allowed to email, and also allowed private communication with their lawyers, why wouldn't they be able to have a registered lawyers' email address not be monitored, or to be able to flag an email as privileged exactly in the way they do with postal mail? >Prosecutors once had a “filter team” to set aside defendants’ emails to and from lawyers, but budget cuts no longer allow for that, they said. They seem to know that it's wrong, they're just becoming more confident that judges will let them do whatever they want. I'd accept that inmates shouldn't be allowed to use the internet at all before I'd accept that budget cuts have made it too expensive for prosecutors not to use privileged communications in court.
bloggerbulk 12y ago
Surely I believe here ... and I think we should work out on this. http://www.bloggerbulk.com http://www.bloggerbulk.com

142 points by growlix 12y ago

Bar associations should demand that lawyers allow clients encrypted email communication. The adoption problem for encrypted email (all encrypted controlled by the client machine using open source software so google or whoever doesn't also have access to the plaintext) is so hard because it takes BOTH parties to keep communication secure. If all lawyers had to do this, people would become much more aware and maybe demand their medical and tax information sent over email also be encrypted.

Fuxy 12y ago
Encryption should be mandatory for all sensitive data if it's not encrypted it's public. However judges allowing the emails to be read sounds really stupid to me it's obviously protected by the attorney-client privilege. Most obvious breaches in law are motivated by prosecutors as a lack of staff or convenience these days. I don't care how understaffed you are or how inconvenient it is that is the law and you have to follow it or at least that's how it should be but apparently judges can choose which laws they want to follow. PGP would be great in this situation, your attorney could give you a USB stick with the public and private keys encrypted by a password of your choice and you could use it to send messages to him. Even if the warden or guards were to confiscate the USB stick they still wouldn't be able to decrypt the messages without the password which is protected by law because it's something only you know. And because of how PGP works the messages sent by you to your attorney can only be decrypted by his private key. Once encrypted even you can't decrypt them anymore since you are using his public key to encrypt the message.

diafygi 12y ago

http://youtu.be/WTPimUSIWbI http://youtu.be/WTPimUSIWbI Attorney client privilege is one of the biggest fallouts from mass surveillance. Earlier this year there was a legal hackathon at Mozilla where I tried to make a product to help that.

NickSharp 12y ago
Thanks for making that! Looks sweet, is it ready for use in the wild? (You mention making it user friendly with a link...) Are there other encryption-type solutions for this problem? Something usable by people locked up in jail who may not be computer savvy. I know a public defender who might be interested.
- diafygi 12y ago
  Definitely not ready for prime time, but it works with links now (see the example link in the video description). However, it probably wouldn't be very useful for people in prison because it requires each party to have a dropbox account. Another project that might be relevant is miniLock, but it's still a ways away from being ready.

RexRollman 12y ago

I worry for this country.

venomsnake 12y ago
The executive, LE and intelligence have gone berserk, the congress is paralyzed, courts make corporations more people than actual people and still US is better place than anywhere on the earth.
- noir_lord 12y ago
  > and still US is better place than anywhere on the earth. Not really, this is a clear case of American Exceptionalism if unintentional. I'd take Germany, Iceland, Sweden, Switzerland or the Netherlands over living in the US if I had the choice.
  - venomsnake 12y ago
    I am not a US citizen and live currently in EU. Europe is not big on the whole freedom of speech stuff.
    - cmdkeen 12y ago
      You're rather oddly equating free speech as what makes the US "the best place on earth". Which is an odd one on an article about the US having an impaired legal system, in the UK there may be more criminal sanctions against certain speech but you'll also get very well defended in a much fairer legal system. Take the instance of the Robin Hood Airport Twitter trial -in the US you'd be relying on a public defender to make a 1st Amendment argument - win and you're grand, lose and the American justice system would bury you as a terrorist.
      - refurb 12y ago
        There are plenty of other examples of rights offered by the US justice system that you don't get in other countries: double jeopardy, how long you can be held before being charged, etc, etc The US might not be perfect (who is?) but it offers some of the highest levels of protection for an individuals rights of any country.

YokoZar 12y ago

Wikipedia tells me that both of the judges that ruled emails are unprivileged were born in 1946. The judge who ruled against the government, however, was born in 1955. I don't think this is a coincidence. I'd be surprised if the former two judges even used email at all.

anigbrowl 12y ago
I really don't think that makes much difference. I'd be much more interested in the judges' political affiliations. The notion that attorney-client communications are privileged, regardless of medium, is not a new concept.
- crdoconnor 12y ago
  IIRC some judges consider email to be something like a postcard or talking in public.
  - rapala 12y ago
    In a way an unencrypted email is like a postcard. Anyone who gets their hands on it can read it without "opening" anything.
    - spacemanmatt 12y ago
      you're missing the point.
    - e_proxus 12y ago
      In the same way an unencrypted telephone call is also like a postcard (or posting a tape), but we still have laws protecting that information flow, like the client attorney privilege. What we are seeing now is just a power grab from governments and organizations to have "novel" forms of communication classed as less protected so they can reap the benefits of being able to intercept it. This is exactly how a legally protected and democratic society breaks down. There are only two ways to solve it. Either protect all forms of communication without discrimination, or use or invent technology to prevent it being possible in the first place (and not outlaw that technology). There are no other ways.

Natsu 12y ago

> Especially since he is acting as a public defender in this case — meaning the government pays him at $125 per hour — Mr. Fodeman argued that having to arrange an in-person visit or unmonitored phone call for every small question on the case was a waste of money and time. The juncture of these two factoids struck me as odd.

psutor 12y ago
The article expects you to know that $125/hr is way below the normal rate for a criminal defense attorney in a major city, which I would expect to start at about $300/hr.
- x0x0 12y ago
  and $300/hr is for the medium ones. If you're looking at serious time and have the resources, you're probably paying $500+ for an attorney experienced in criminal defense trials and your type of claimed lawbreaking.
- enjo 12y ago
  I'm a very well paid software engineer.. I apparently can't afford to hire a qualified defender if I find myself in need. I figure a defense is a minimum of 500 hours, so even at $300 that's $150,000. I have no idea where I get that type of money from. Our justice system is severely screwed.
  - rhizome 12y ago
    A 500 hour billing for defense would be pretty serious, so if that's going to be a problem for you here's a heads-up to ixnay on the crime you're committing that's going to require brand-new Supreme Court-favorable legal theories for acquittal. That's over 3 months of 40-hour weeks dedicated to just your case. I know lawyers bill like crazy, but still.
    - mrkurt 12y ago
      Avoiding crime isn't really an effective way to avoid needing a lawyer, unfortunately.

jroes 12y ago

I was listening to NPR recently and there was an interview with a former Clinton administration official [1] who mentioned almost in passing that prosecutors regularly infringe on the right to privileged conversation between a defendant and their lawyer. Specifically, he mentioned that the room you are given with your lawyer has paper thin walls that the police and prosecutor folks can hear through easily, and when in jail there is no way to have a real private conversation with your lawyer as well. [1] http://wfae.org/post/webb-hubbell http://wfae.org/post/webb-hubbell

jpatokal 12y ago
I'd hope that's not admissible as evidence in court though, while in this case the emails would apparently be.
- defilade 12y ago
  Think of it this way: you're in jail and you're talking to your lawyer about what he thinks the prosecutor's strategy will be, and how he's going to defend you against it. That has nothing to do with evidence admissibility but could still be damaging to your case if the prosecutor finds out about it.
  - saraid216 12y ago
    That's roughly equivalent to discovering the identity of someone on the internet who you're arguing with and using it to "win" the argument.
    - withdavidli 12y ago
      Why do you think this is roughly equivalent? It's not about knowing the identity of the person, it's knowing how they are going to proceed in arguing their case. Setting up an argument takes a lot of time, it's their strategy for winning a case / defending their client. Knowing this beforehand will put one side at an advantage in preparing their case and specifically aim at any faults in arguments. Also why is "win" in quotes? There's generally no winners in flame wars, but in a court of law decisions are made on who wins and loses unless there's a mistrial/deals being cut by both sides. So being able to concentrate efforts directly preparing against a known strategy that the opponent is using is a big advantage.

rtpg 12y ago

>She seemed to take particular offense at an argument by a prosecutor, F. Turner Buford, who suggested that prosecutors merely wanted to avoid the expense and hassle of having to separate attorney-client emails from other emails sent via Trulincs. Would it be that hard to specify one e-mail address as a "priviledged address" (with a signature from the lawyer about such) and filter out those? It's really surprising how people can go to court and argue such claims.

spacemanmatt 12y ago
That's why the judge felt insulted.

Canada 12y ago

"...budget cuts no longer allow for that, they said." Is the amount of money being spent on prisons in the United States really shrinking? Honestly, I have no idea.

anigbrowl 12y ago
I think it's more the amount of money bugeted for prosecutor's offices. Normally things like this would go past a review attorney whose job is is to separate privieleged communications from non-privileged and pass only the latter to the prosecutors, but those are the bottom-rung jobs and the first to go when there are budget cuts. Not many politicians are interested in the legal problems of federal prisoners, standing up on this sort of issue is a sure way to be labeled as 'soft on crooks' by your electoral opponents. Chances are that this won't get fixed until a sufficiently high-level court rules on it, at which point we'll hear a lot of whining about 'activist judges' and so on. What a revolting development.
yardie 12y ago
No, just more things being illegal. More prisons, more prisoners, same amount of money. I seriously doubt any prison has had a budget cut. No politician wants to be seen as soft on crime. And since they can't scale it back the budget stays status quo.

xmstr 12y ago

In most circumstances I am all for attorney-client privilege. But if you are in jail or prison and provided a medium to communicate to the outside world and that medium requires you to accept a consent to monitoring agreement before each use, then you should have no expectation of privacy regardless of whom the communication is with. The prison system has proper ways to initiate secure attorney-client communication and these people failed to use it, that’s their problem. However, I do think the law needs to be updated to allow for secure email communication between the attorney and client, but until that occurs they need to live within the confines of the law.

pessimizer 12y ago

If inmates are allowed to email, and also allowed private communication with their lawyers, why wouldn't they be able to have a registered lawyers' email address not be monitored, or to be able to flag an email as privileged exactly in the way they do with postal mail? >Prosecutors once had a “filter team” to set aside defendants’ emails to and from lawyers, but budget cuts no longer allow for that, they said. They seem to know that it's wrong, they're just becoming more confident that judges will let them do whatever they want. I'd accept that inmates shouldn't be allowed to use the internet at all before I'd accept that budget cuts have made it too expensive for prosecutors not to use privileged communications in court.

bloggerbulk 12y ago

Surely I believe here ... and I think we should work out on this. http://www.bloggerbulk.com http://www.bloggerbulk.com