In the course of gathering electronic evidence in an investigation, apparently the Justice Department sometimes has trouble telling the difference between a subpoena of "stored communications" and warrantless wiretapping. But it shouldn't be that hard to distinguish between demanding existing e-mail records from an ISP and ordering an ISP to proactively collect a user's e-mail over a period of six months so that you can then go back and subpoena the collection. So, the EFF filed an amicus brief in Warshak v. United States to help ensure that the DOJ's apparent confusion isn't transmitted to the 6th US Circuit Court of Appeals.

As part of a 2005 criminal investigation of Stephen Warshak for fraud, the government invoked the Stored Communications Act of 1986 to justify issuing a secret order to Warshak's ISP, NuVox, demanding copies of Warshak's e-mail. When Warshak found out that the DOJ was reading his e-mails, he filed a civil suit against the government, claiming that the manner in which the e-mail snooping was carried out violated both the SCA and the Fourth Amendment.

Two years later, in the landmark case of Warner v. United States, the Sixth Circuit Court ruled in Warshak's favor, establishing that users have an expectation of privacy in their email communications just like they do when they use the telephone. (The best coverage of this case was done by Orin Kerr at the Volokh Conspiracy.)

The present case in which the EFF filed its latest brief is the actual criminal case against Warshak, and this time the EFF is arguing that not only did the government violate the SCA and the Fourth Amendment, but it went against the DOJ's own surveillance manual as well.

In the EFF's telling of the facts surrounding the case, the government approached NuVox under seal and asked them to "prospectively preserve" Warshak's communications for several months. Then, once NuVox had built up a body of such stored email communications, the feds invoked the SCA to obtain them from NuVox without a warrant. The EFF argues that "the government misused the SCA to conduct a 'back door wiretap' of Warshak's emails and bypass the Wiretap Act's strict requirements, including its requirement of probable cause."

The EFF's brief quotes the relevant section of the DOJ's surveillance manual, which goes out of its way to make clear the difference between preserving existing records and prospectively preserving records that haven't yet been created:

Agents may direct providers to preserve existing records pending the issuance of compulsory legal process. Such requests have no prospective effect, however . Agents who send � 2703(f) letters to network service providers should be aware of [a] limitation[]. [T]he authority to direct providers to preserve records and other evidence is not prospective. That is, � 2703(f) letters can order a provider to preserve records that have already been created, but cannot order providers to preserve records not yet made. If agents want providers to record information about future electronic communications, they must comply with the electronic surveillance statutes discussed in Chapter 4 [i.e., the Wiretap Act for communications content, and the Pen Register Statute for non- content communications information].

One wonders if the Obama DOJ under Holder will drop the case entirely, given its predecessors' evidence gathering shenanigans. The administration has been a huge disappointment to civil liberties advocates so far in a number of high-profile, terrorism-related cases, opting to maintain more continuity with the Bush administration than the ACLU and other advocacy groups would like.