NCPA - National Center for Policy Analysis

Electronic Privacy Breach: Mail Order

September 10, 2010

In 1986, Congress passed the Stored Communications Act, firming up Fourth Amendment privacy protections for e-mail and other electronic communications, says Reason Magazine.

  • Since then, the government has had to show probable cause and obtain a warrant in order to get access to e-mail maintained on an Internet service provider's server if it is less than 180 days old.
  • But federal prosecutors in Colorado think they have found a loophole: If e-mail has been opened and read, they say, it no longer qualifies as "stored communications," which refers to "temporary" storage and backups, so no warrant is necessary.
  • In December 2009, federal authorities used this argument to demand that the e-mail host Yahoo! disclose the contents of messages stored on its servers, saying they were "relevant and material to the government's investigation" in a criminal case.

In a brief filed on Yahoo!'s behalf, Google, the Electronic Frontier Foundation and several other interested parties called the government's reading of the law "strained," saying it "contradicts [the] plain language" of the statute.  It may also be unconstitutional:  Case law suggests that stored e-mail should enjoy the same Fourth Amendment protections as private papers, says Reason.

Source:  Peter Suderman, "Mail Order," Reason Magazine, August-September 2010.

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