Yahoo prevailed Friday over Colorado federal prosecutors in a legal battle testing whether the Constitution's warrant requirements apply to Americans' e-mail.

Saying the contested e-mail "would not be helpful to the government's investigation," (.pdf) the authorities withdrew demands for e-mail in a pending and sealed criminal case. For the moment, the move ends litigation over the hotly contested issue of when a warrant under the Fourth Amendment is required for Yahoo and other e-mail providers to release consumer communications to the authorities.

The brouhaha concerned a 1986 law that already allows the government to obtain a suspect's e-mail from an internet service provider or webmail provider without a probable-cause warrant, once it's been stored for 180 days or more. The government contended, and then backed off Friday, that it could get e-mail less than 180-days old if that e-mail has been read by the owner, and that the Constitution’s Fourth Amendment protections don't apply.

Yahoo was backed (.pdf) by the Electronic Frontier Foundation, Google and the Center for Democracy & Technology in challenging the government's position. It defied a court order to turn over those e-mails to the feds in a Colorado criminal probe that is under seal. Litigation over the topic ensued, and the government blinked in a legal standoff highlighting antiquated privacy laws.

Had the courts adopted the government's position, (.pdf) 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 was not suspected of wrongdoing.

Still, the government's move does not resolve the privacy issue, but merely instead delays it for a later day.

The legal jockeying began Dec. 3, when a Colorado magistrate ordered Yahoo to hand over to authorities e-mail communications under six months old "received by the specified accounts that the owner or user of the account has already accessed, viewed or downloaded."

Yahoo refused, claiming the 1986 Stored Communications Act requires the government to show probable cause to obtain that e-mail. (.pdf) The government asserted a lesser, warrantless standard that the "communications sought are relevant and material to an ongoing criminal investigation."

The difference between those standards is the subject of fierce debate in the legal community.

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 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.

Until Friday, the government’s position in the Colorado case tried to push the outdated law even further. Prosecutors were arguing that opened e-mail less than 180 days old is no longer in “electronic storage” as defined by the law — which allows the feds to obtain that e-mail without probable cause.

Yahoo spokeswoman Dana Lengkeek said in a telephone interview that "We're pleased with the decision and we continue to be committed in protecting the privacy of users."

Colorado prosecutors declined comment.

See Also: