Google backs Yahoo in privacy fight with DOJ
by Declan McCullagh – CNET
Google and an alliance of privacy groups have come to Yahoo’s aid by helping the Web portal fend off a broad request from the U.S. Department of Justice for e-mail messages, CNET has learned.
In a brief filed Tuesday afternoon, the coalition says a search warrant signed by a judge is necessary before the FBI or other police agencies can read the contents of Yahoo Mail messages–a position that puts those companies directly at odds with the Obama administration.
Yahoo has been quietly fighting prosecutors’ requests in front of a federal judge in Colorado, with many documents filed under seal. Tuesday’s brief from Google and the other groups aims to buttress Yahoo’s position by saying users who store their e-mail in the cloud enjoy a reasonable expectation of privacy that is protected by the U.S. Constitution.
“Society expects and relies on the privacy of e-mail messages just as it relies on the privacy of the telephone system,” the friend-of-the-court brief says. “Indeed, the largest e-mail services are popular precisely because they offer users huge amounts of computer disk space in the Internet ‘cloud’ within which users can warehouse their e-mails for perpetual storage.”
The coalition also includes the Electronic Frontier Foundation, the Center for Democracy and Technology, the Progress and Freedom Foundation, the Computer and Communications Industry Association, and TRUSTe.
For its part, the Justice Department has taken a legalistic approach: a 17-page brief it filed last month acknowledges that federal law requires search warrants for messages in “electronic storage” that are less than 181 days old. But, Assistant U.S. Attorney Pegeen Rhyne writes in a government brief, the Yahoo Mail messages don’t meet that definition.
“Previously opened e-mail is not in ‘electronic storage,'” Rhyne wrote in a motion filed last month. “This court should therefore require Yahoo to comply with the order and produce the specified communications in the targeted accounts.” (The Justice Department’s position is that what’s known as a 2703(d) order–not as privacy-protective as the rules for search warrants–should let police read e-mail.)
On December 3, 2009, U.S. Magistrate Judge Craig Shaffer ordered Yahoo to hand to prosecutors certain records including the contents of e-mail messages. Yahoo divulged some of the data but refused to turn over e-mail that had been previously viewed, accessed, or downloaded and was less than 181 days old.