ARTICLE FROM THE ATLANTIC

A reader sends in a link to this recent post by law professor Orin Kerr, on a ruling about how 4th Amendment protections against “unreasonable search and seizure” apply to email. The central question is whether the government needs to inform individual email users when their messages are seized and read — or whether it is sufficient to notify their internet service provider or mail service, like Google or Yahoo. According to the logic of the ruling, by the sheer act of sending email, a user has transferred custody of the messages to a third party. Thus notifying the third party — Google, Yahoo, et al — is enough, with the sender left in the dark.

As that post describes, the legal comparison-drawing goes in many directions. Is “giving” an email to Yahoo like putting a package in a public storage locker? Is it like putting an envelope in a regular mailbox? Does it matter if the message is encrypted? Etc. But the reader’s point is less about the ins and outs of this ruling than about the broader legal/privacy implications of storing information “in the cloud.” When you’re working in Google Docs, as opposed to using a spreadsheet or document that lives on your computer, have you essentially surrendered custody and control of that information? What if you rely on online “cloud” systems — Carbonite, SugarSync — to back up or sync your files? Have you given up custody of those files too? The reader writes:

“Based, in part, on your fondness ["your" referring to me, JF] for storing your documents in “the cloud” via third-party services like Sugarsync, Google Docs, etc., I thought you would this link interesting. [It concerns an opinion] concluding that email messages – even if they are entitled to 4th Amendment protection – can be retrieved by federal law enforcement authorities WITHOUT NOTICE TO THE SUBSCRIBER. The court’s rationale – that the ISP is a “third party” rather than a file cabinet inside the target’s “home” – would seem to apply perfectly well to documents stored in the cloud.

“My concern about such matters is one big reason I do not rely much on “cloud” services of which you are so fond. It’s not that I have much about myself that is all that interesting to third parties. It’s that, as a lawyer, I have an ethical obligation to protect client confidences. And – if [this] reasoning prevails nationwide – this becomes impossible to do if I were to receive no “notice” from the ISP that they had received a search (or already complied with) a warrant for my clients’ personal stuff.

“To be clear, my clients are mostly indigent disabled people rather than individuals accused of criminal conduct, but – still – these sort of “big picture” issues are what a lawyer thinks about when he or she is deciding whether to make a wholesale migration to Sugarsync or Google Docs. And, for what it’s worth, it is why I think Google and Sugarsync would be well served in joining together to lobby FOR a federal statute imposing strict privacy protection on documents stored in the cloud.

“There is no way I’m putting my business docs permanently online until this issue is clearly settled in favor of privacy. It would, in fact, be unethical for me to do so…. While having copies of all your stuff stored in the cloud may be vastly more convenient than having it in your home-office file cabinet – it is a vastly less safe “place” from a privacy standpoint.”

I am not equipped to say more about the legal aspects here. But as a matter of politics and policy, I think the reader’s recommendation is exactly right. All parties with a stake in developing cloud-based computing — Google and Microsoft, IBM and Apple, Yahoo and anyone else you can name — should push for clearer policy statements about keeping things private even in the cloud. People simply are going to store and share more information this way. That shouldn’t mean a further, big, automatic, unintended surrender of privacy, and it would be better to set up rules to that effect before there’s a big scandal or problem.

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NASA’s Ares 1-X rocket roared into the sky over the Kennedy Space Center today in the first test of what may in due course substitute the nation’s aging fleet of space shuttles.

“Three, two one, ignition — and liftoff of Ares 1-X,” George Diller, NASA’s launch commentator, said as the rocket left the pad.

The rocket took off from launch pad 39B at 11:30 a.m. ET, after waiting more than three hours for Florida’s famously changeable weather to clear. Skies today at the launch site were partly cloudy, but controllers worried that static electricity could build up on the rocket as it rose above the Atlantic ocean.

The flight was brief. The rocket’s first stage burned for two minutes as planned, lifting the Ares to an altitude of a bit less than 30 miles. The second stage, and the Orion spacecraft mounted on top, were mockups for this first test.

The two stages separated as scheduled, but long-range cameras showed the unpowered second stage turning sharply and beginning to tumble a moment later. NASA managers said they were not sure if there was an actual problem. On future flights the upper stage will be set to fire as it pulls away from its booster.

Maximum speed today was about 4.7 times the speed of sound. On operational flights to orbit, it will need to reach 25 times the speed of sound. For this test flight, the booster carried more than 700 electronic sensors to measure pressure, strain, acceleration and over effects, and NASA said it would take months to digest all the data from them.

The first stage is designed to be reused, with parachutes to lower it into the water after it uses up its fuel. NASA has two ships to tow it back to the Kennedy Space Center.

“Think about we just did,” said launch director Ed Mango to his team after the Ares had finished its flight. “Our first flight test, and all we had to wait for was weather. That’s frickin’ fantastic.”

Former astronaut Robert Cabana, who now heads the Kennedy Space Center, then took the microphone. “That was just unbelievable, that was fantastic,” he said. “It brought tears to my eyes.”

Veteran flight director Gerald Griffin was there to see the rocket go. “I think it is historical because it is the first new step we have taken in 30 years,” he said in an interview with ABC News. “We are now off on a new adventure.”

Launch had originally been scheduled for 8 a.m. ET, but that time came and went as mission managers waited for the weather risk to go down. They finally launched with half an hour to spare.

There had been several lightning strikes overnight near the launch pad, some less than 700 yards from the rocket itself. Giant lightning rods have been added to pad 39B for the Ares project, and they towered over the booster.

The launch window for Tuesday and today ran from 8 a.m. to noon, so that there would be several hours of daylight after the test was over.

The first stage of the Ares rocket is an updated version of the solid rocket boosters strapped to each side of a space shuttle’s orange fuel tank. The boosters have been used since 1981. One failed, tragically, causing the Challenger explosion in 1986, but they have been heavily modified since then.

The Ares was meant to be simpler, cheaper and more reliable than the shuttles. If it ever carries astronauts, they will be in a cone-shaped capsule on top of the rocket — considered safer than the shuttles, which are attached to the side of their external tanks and have often been hit by debris falling from the tanks during launch.

The 2003 Columbia tragedy was believed caused by foam from the fuel tank, coming off and damaging the shuttle’s wing.

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