Prosecutors Are Reading Emails From Inmates to Lawyers | Hacker News Reader

Prosecutors Are Reading Emails From Inmates to Lawyers

nytimes.com

142 pointsgrowlix61 comments

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.

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.

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

I'd hope that's not admissible as evidence in court though, while in this case the emails would apparently be.

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.

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.

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.

> Also why is "win" in quotes?

Because,

> There's generally no winners in flame wars

using it to "win" the argument

Is that a euphemism for "intimidate them into shutting up"?

Yes. You haven't seen it used before?

I talked to a relative who is a lawyer and was told that court cases are not dramatic as seen on TV. Both the prosecutor and defense side have access to all documents and have ample time to prepare their arguments. There are no surprises in court (if there is either side can ask for more time to prepare based on new info).

So knowing strategies doesn't really help, because you kind of already know the strategy and have prepared your response.

Now - if you are guilty, and you tell your lawyer where you buried the bodies and the police happen to let a cadavar dog lose in that general location ...

However, I agree with the first poster - there should be an official secure channel for communicating with counsel after you are convicted.

"Now - if you are guilty, and you tell your lawyer where you buried the bodies and the police happen to let a cadavar dog lose in that general location ..."

This does release the Kafka-esque possibility of being indicted for contempt of court or obstruction of justice by telling a lie to your lawyer in a supposedly private email, and then the cops wasting lots of money on it.

If you can avoid indictment under the above, this is an interesting DDOS opportunity against the system. All prisoners should immediately email their lawyer that they know where Jimmy Hoffa is buried etc. Send three "private" emails to your lawyer with three different strategies and then conduct a fourth at trial. Something like that.

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.

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.

IIRC some judges consider email to be something like a postcard or talking in public.

In a way an unencrypted email is like a postcard. Anyone who gets their hands on it can read it without "opening" anything.

you're missing the point.

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.

TBH with the knowledge of the recent (and not so recent) NSA stuff, so should phone calls, then - IIRC those are still protected by confidentiality.

>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.

That's why the judge felt insulted.

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.

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.

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.

> 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.

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.

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.

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.

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.

Avoiding crime isn't really an effective way to avoid needing a lawyer, unfortunately.

I wasn't trying to account for all crime everywhere, because after all there are cases of mistaken/misattributed identity that are very time-consuming to defend, but all in all it's a very good way to avoid 500 hours of lawyer.

That price is just for the lawyers time too, there's many other costs like billing for photo copies, calls, court fees, couriers to deliver registered mail, everything is charged unless quoted a flat fee from a McLawyer.

500 hours is a lot of defender time. However, I suspect this is yet another reason so many innocent people plea bargain vs going to trial.

Seems there is market for insurance product.

"Our justice system is severely screwed."

If the purpose of a justice system is to tranquilize the people with the false idea they'll have justice, so no need for rebellion or revolution, and only a "small percentage" learn the truth via experience, I'm not seeing a problem here, as long as the general public doesn't get to talk with each other only be preached to by a couple mega corporations. Oh that internet thing, we hates it. As a PR technique for oppression it seems to work pretty well so far, yes?

"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."

The lawyers have a cushy government-aided monopoly. You can't "practice" law if you don't have have BAR approval from the lawyer priesthood. And they've been slowly increasing the difficulty for people to enter the field. It's nigh impossible to know law sufficiently well to defend yourself/someone else (even if they allowed you), yet that is precisely the situation that is created and enforced.

And we all know what happens when supply is restricted: the existing players increase their prices because you have to use them if you don't want to go to jail (a.k.a. government-funded rape rooms); there is simply no alternative.

Lawyers are the new priesthood of the state. Please, wake up.

It doesn't seem to be getting harder to pass the bar in the U.S. In 2000, 72,704 bar examinations were taken, with 47,160 passing, ~65%. In 2013, 83,986 exams were taken, with 57,026 passing, ~68%. Those are the yearly totals, I guess they include people taking the exam twice.

I got the numbers here:

http://www.ncbex.org/publications/statistics/

I picked those 2 years just because, I didn't look at any other years.

While a client might balk at paying 5 billable hours for a jailhouse visit to answer a single question, would a public defender face any career risk from billing the state as such?

My read of that was that it's inefficient for the government to pay one person 5 * $125 / hour to keep another government employee from getting access to information that could have been transmitted, read, and responded to in a matter of minutes.

The article mentioned it takes 5 hours. So 1/2 a day of work (and $625 of billings) to answer a single question.

From my experience with lawyers in a lawsuit, there where lots and lots of little questions. Eg they'd ask what I meant by a sentence in an email between me and the defendants.

Also, am I the only person who finds it just fucking amazing a prosecutor should be able to read emails between a defendant and his or her lawyer?

It's just another case of people using new technology as an excuse to encroach on rights. Ridiculous and absurd, but I wouldn't say it's surprising that it happened.

One of the egalitarian things about physics is that no matter how much you get paid per hour, you still have exactly as much time as everybody else.

People die at all different ages.

Few people work until they die of old age.

So? Working is just one of the things you can do with time. If it was the only thing, everyone would work until they died.

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.

I worry for this country.

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.

> 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.

I am not a US citizen and live currently in EU.

Europe is not big on the whole freedom of speech stuff.

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.

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.

The US has freedom of speech, yes.

It doesn't bother making sure that you're alive to say it.

It doesn't bother making sure that you're capable of saying something worthwhile.

So, yes. You have freedom of speech. It's just that most American speech is pointless.

Compared to the terrible crimes of denying holocaust or denying communist atrocities or drawing a swastika. Or the terrible - well pretty much every law in UK (libel, knife carry, mandatory decryption).

I am an European, but we have a long way to go towards sanity. And with obesity declared a disability I feel like we are moving away from it.

The thing is that freedom of speech isn't all that important in the long run. It's important, yes, but speech is the first, tiniest baby step in a very long process towards change. To focus on it to the exclusion of all else is to no different than silencing yourself.

Indeed, having speech and naught else is like a vent that lets off steam, making change and better lives harder to come by. It is the fool's prerogative to speak his mind, but at the end of the day, the king is still a king, and the fool is still a fool.

I'm US citizen living in Canada. Americans are usually so programmed with Exceptionalism that it takes months for the brightest expats to clear the brainwashing. I was lucky enough to have very patient friends who politely explained why my "America is obviously better" was wrong.

Americans rarely pay attention to all the USA flags in all their television programming, so you must forgive them for the militant nationalism. They really don't know any better until they've lived outside their borders.

"...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.

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.

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.

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.

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