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Yahoo and federal prosecutors in Colorado are embroiled in a privacy battle that’s testing whether the Constitution’s warrant requirements apply to Americans’ e-mail. The legal dust-up, unsealed late Tuesday, concerns a 1986 law that already allows the government to obtain a suspect’s e-mail from an ISP or webmail provider without a probable-cause warrant, once it’s been stored for 180 days or more. The government now contends it can get e-mail under 180-days old if that e-mail has been read by the owner, and the Constitution’s Fourth Amendment protections don’t apply.
“The government says the Fourth Amendment does not protect these e-mails,” Kevin Bankston, an EFF lawyer, said in a telephone interview Wednesday. “What we’re talking about is archives of our personal correspondence that they would need a warrant to get from your computer but not from the server.
If the courts adopt the government’s position, the vast majority of Americans’ e-mail 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 e-mail’s owner is not suspected of wrongdoing.
But all sides agree that obtaining unopened e-mail less than 180 days old requires the authorities to make a probable-cause showing to a judge, and that after 180 days stored e-mail — read or unread — can be accessed without such a warrant.
The 1986 Stored Communications Act was enacted at a time when e-mail generally wasn’t stored on servers at all, but instead passed through them briefly on their way to the recipient’s inbox. In today’s reality, e-mail can, and is, being stored on servers forever. A consortium of businesses, including Google and Microsoft, recently asked Congress to update the law and require probable cause to obtain any e-mail.