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:

For more on this case:

For more on Digital Due Process:


Kevin Bankston
Senior Staff Attorney
Electronic Frontier Foundation

Jennifer Stisa Granick
Civil Liberties Director
Electronic Frontier Foundation

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