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EFF Press Release Archives

Press Releases: April 2010

April 14, 2010

Joins With Google and Others to Argue for Fourth Amendment Protection of Email

Denver - 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:
http://www.eff.org/files/filenode/inreusaorder18/AmiciBriefYahooEmails.pdf

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

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

Contacts:

Kevin Bankston
Senior Staff Attorney
Electronic Frontier Foundation
bankston@eff.org

Jennifer Stisa Granick
Civil Liberties Director
Electronic Frontier Foundation
jennifer@eff.org

Related Issues:
April 13, 2010

EFF and Other Nonprofit Groups Ask Court to Reject Viacom's Arguments

New York - The Electronic Frontier Foundation (EFF) and other nonprofit groups asked a federal judge Monday to reject expansive copyright claims made in lawsuits pending against YouTube. The amicus brief argues that the plaintiffs in those lawsuits are pushing for legal rulings that would undermine federal law and throttle free speech and innovation on the Internet.

Viacom and a variety of class action plaintiffs are suing YouTube, claiming that the online video service is liable for copyright infringements committed by its users. YouTube has responded by arguing that its activities are shielded by the "safe harbor" provisions of the Digital Millennium Copyright Act (DMCA), which give legal protections to online service providers that host content on behalf of users.

Despite the DMCA, the plaintiffs have claimed that YouTube should be held responsible for infringements that occurred before May 2008, when the site voluntarily implemented content filtering technologies. In effect, the plaintiffs have urged the court to make content filtering mandatory for all online service providers that host content on behalf of users. In the amicus brief filed Monday, EFF -- joined by the American Library Association, Association of College and Research Libraries, Association of Research Libraries, Center For Democracy and Technology, Computer and Communications Industry Association, Home Recording Rights Coalition, Internet Archive, NetCoalition, and Public Knowledge -- argues that Viacom's theory would rewrite federal law and thwart Congress' goal of reducing the legal uncertainties facing companies trying to innovate on the Internet.

"This case is not just about YouTube," said EFF Senior Staff Attorney Fred von Lohmann. "Nearly every online service that fosters free expression and commerce online -- like the Internet Archive, Blogger, Facebook, eBay, Amazon, Flickr, and Scribd -- depends on the very same DMCA safe harbors that YouTube is relying on here. Viacom is trying to undo the law that Congress designed to provide a modicum of legal certainty for those who build these innovative online services."

The cases against YouTube are pending in federal court in the Southern District of New York. Additional briefs will be filed by the parties on April 30 and June 4. A hearing and decision will follow.

For the full amicus brief:
http://www.eff.org/files/filenode/viacom_v_youtube/YouTubeAmicusBriefFINAL.pdf

For more on this case:
http://www.eff.org/cases/viacom-v-youtube

Contact:

Fred von Lohmann
Senior Staff Attorney
Electronic Frontier Foundation
fred@eff.org

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