A federal magistrate judge in Colorado has ordered Yahoo to disclose—without probable cause or a warrant—email less than six months old to law enforcement officials. Yahoo has declined, citing the Stored Communications Act that requires probable cause and a warrant for disclosure of email to or from US citizens.
That six months old bit is more important than it appears. Disclosure of unopened email, less than 180 days old, requires probable cause and a warrant. After 180 days, disclosure of email—opened or unopened—does not require a warrant.
The Obama administration is claiming that email less than 180 days old that has been read by the recipient can be obtained without probable cause or a warrant—and never mind about the Fourth Amendment to the Constitution. Think of it as Obama’s warrantless email wiretapping. Kevin Bankston, Electronic Frontier Foundation (EFF) senior staff attorney, disagrees. “The government is trying to evade federal privacy law and the Constitution,” said Bankston in an EFF media release. “The Fourth Amendment protects these stored emails, just like it does our private papers. We all have a reasonable expectation of privacy in the contents of our email accounts, and the government should have to make a showing of probable cause to a judge before it rifles through our private communications.”
The case itself is still sealed; only the order, Yahoo’s response, and the EFF brief are public information. A consortium of internet service providers—including Google and Microsoft—has been lobbying Congress to update the Electronic Communications Privacy Act to require government agencies to have probable cause and warrants for email disclosures. As Wired‘s Ryan Singel notes, “... despite issuing a clarion call to change privacy laws, none of the companies that are pushing citizens to store more and more sensitive information online announced any change to their own practices.”
It’s important to note that the Stored Communications Act and the Electronic Communications Privacy Act are 1986 laws, dating back to when email traversed from sender to receiver across servers but was almost never stored on a server. Now, almost all email resides on a server from periods of several days to forever.
David Kravets, writing for Wired, sums it up succinctly: “If the courts adopt the government’s position, the vast majority of Americans’ email would be accessible to the government without probable cause, whenever law enforcement believes the messages would be relevant to a criminal investigation, even if the email’s owner is not suspected of wrongdoing.”
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