EFF Backs Yahoo! to Protect User from Warrantless Email Search

The Electronic Frontier Foundation (EFF) along with Google and
numerous other public interest organizations and Internet industry
associations joined with Yahoo! in asking a federal court Tuesday to
block a government attempt to access the contents of a Yahoo! email
account without a search warrant based on probable cause.

The Department of Justice is seeking the emails as part of a case
that is under seal, and the account holder has apparently not been
notified of the request. Government investigators maintain that because
the Yahoo! email has been accessed by the user, it is no longer in
"electronic storage" under the Stored Communications Act (SCA) and
therefore does not require a warrant, even though that same legal theory
has been flatly rejected by the one Circuit Court to address it.

Yahoo! is challenging the government request before a federal
magistrate judge in Denver, arguing that the SCA and Fourth Amendment
require the government to get a search warrant before compelling Yahoo!
to disclose the email. In an amicus brief filed in support of Yahoo!
Tuesday, EFF says that the company is simply following the law and
protecting the constitutional privacy rights of its customers.

"The government is trying to evade federal privacy law and the
Constitution," said EFF Senior Staff Attorney Kevin Bankston. "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."

This email privacy case comes on the heels of the announcement of a
broad coalition of technology companies, think tanks, academics, and
privacy groups -- including EFF -- that is calling for amendments to
clarify and strengthen federal privacy law to preserve traditional
privacy rights in the face of rapidly changing technology. The Digital
Due Process coalition's recommendations would, among other things,
clarify that the government must get a warrant before obtaining stored
email messages, regardless of whether they are opened or unopened and
regardless of their age.

"Americans trust Internet service providers and other technology
companies to collect and store large amounts of personal information --
more and more every day -- and it's time that Congress clarified and
strengthened the law to better protect that data," said EFF Civil
Liberties Director Jennifer Granick. "Just as your postal letters and
packages are private even though the carrier could open them, so your
email and other information is protected even if it is stored on a third
party's server."

Along with Google, other signers to the EFF brief are the Center for
Democracy & Technology (CDT), the Center for Financial Privacy and
Human Rights (CFPHR), the Competitive Enterprise Institute (CEI), the
Computer & Communications Industry Association (CCIA), the
Distributed Computing Industry Association (DCIA), NetCoalition, the
Progress & Freedom Foundation (PFF) and TRUSTe. Signers were
represented by EFF, Professor Paul Ohm of the University of Colorado at
Boulder and the Samuelson-Glushko Technology Law & Policy Clinic,
and attorney Matthew M. Linton of the firm Kennedy Childs & Fogg,
P.C., in Denver.

For the full amicus brief:
https://www.eff.org/files/filenode/inreusaorder18/AmiciBriefYahooEmails.p...

For more on this case:
https://www.eff.org/cases/re-application-united-states-america-order

For more on Digital Due Process:
https://www.digitaldueprocess.org