Privacy protection for electronic communications has been a subject of debate for some time now, so it should come as no surprise that the government continues to make controversial attempts to obtain private email communications. A recent legal controversy between Yahoo! and the Department of Justice illustrates just how far the government can go in requiring third-party Internet service providers (ISPs) to disclose the email conversations of its users.

To provide a bit of background, the discovery of emails stored by ISPs is generally governed by the Stored Communications Act. The Act allows a court to require disclosure of emails stored on an ISP server for more than 180 days if the government can show specific and articulable facts that the contents are material to an ongoing investigation. For emails stored less than 180 days, the Act requires the government to obtain a search warrant. The Act has been criticized by companies such as Google and Microsoft, who have demanded that Congress update the law to require search warrants before obtaining any emails from ISP servers, not just those stored for less than 180 days. Even President Obama, during his 2008 campaign, expressed support for “updating surveillance laws and ensuring that law enforcement investigations and intelligence-gathering relating to U.S. citizens are done only under the rule of law.” According to the Center for Democracy and Technology, this law was passed at a time when emails were downloaded from ISP servers directly to a user’s computer, and any emails on servers for more than 180 days were considered abandoned. However, technology advances now allow users to store a majority of their emails on Google, Yahoo!, and Microsoft servers, which in turn allows law enforcement agencies to access a greater number of emails without a search warrant.

The Justice Department seemingly capitalized on the Act’s outdated language in its recent attempt to require Yahoo! to disclose emails that had been on company servers for less than 180 days. Prosecutors in the case argued that emails permanently stored on Yahoo! servers do not fall under the Stored Communications Act’s search warrant protection for “electronic storage,” even if less than 180 days old, because the emails were not within the category of temporary storage contemplated by the Act’s protections. The same civil rights groups that have been urging Congress to update the Stored Communications Act criticized the Justice Department’s attempts as violating Fourth Amendment privacy protections, and attempting to obtain “archives of our personal correspondence that they would need a warrant to get from your computer but not from the server.” Indeed, this request for compelled disclosure seemed to mock President Obama’s earlier campaign promise to update privacy protections in this area.

Perhaps in response to this criticism, the Justice Department withdrew its request on Friday, stating only that “the government has concluded that further production of records and information by Yahoo! would not be helpful to the government’s investigation.” While this may be a victory for Yahoo! and the subscribers involved in this particular investigation, it also means that the courts will not have an opportunity to interpret this provision of the Stored Communications Act or clarify this area of the law.

Spencer Compton

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