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Google backs Yahoo in privacy fight with DOJ

In court fight against Justice Department, Yahoo finds ally in Google and privacy groups, who say police need warrant to read private e-mail.

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.

A Yahoo representative declined to comment.

"This case is about protecting the privacy rights of all Internet users," a Google representative said in a statement provided to CNET on Tuesday. "E-mail stored in the cloud should have the same level of protection as the same information stored by a person at home."

That is, in fact, the broader goal of the groups filing Tuesday's brief. They're also behind the new Digital Due Process Coalition, which wants police to be able to obtain private communications (and the location of Americans' cell phones) only when armed with a search warrant.

Under a 1986 law written in the pre-Internet era, Internet users enjoy more privacy rights if they store data locally, a legal hiccup that these companies fear could slow the shift to cloud-based services unless it's changed.

The judge should "reject the government's attempted end-run around the Fourth Amendment and require it to obtain a search warrant based on probable cause before searching and seizing e-mails without prior notice to the account holder," the coalition brief filed Tuesday says. The Bill of Rights' Fourth Amendment prohibits unreasonable searches and, in general, has been interpreted to mean warrantless searches are unreasonable.

The legal push in Colorado federal court, and a parallel legislative effort in Congress to update the 1986 Electronic Communications Privacy Act, is likely to put the coalition at odds with the Obama administration.

A few weeks ago, for instance, Justice Department prosecutors told a federal appeals court that Americans enjoy no reasonable expectation of privacy in their mobile device's location and that no search warrant should be required to access location logs.

The U.S. Attorney's office in Colorado did not immediately respond to a request for comment.

Update 8:15 p.m. PDT Tuesday: I've heard back from a Justice Department representative who says he'll be able to answer questions on Wednesday after he talks to the cybercrime section.

Update 9 a.m. PDT Wednesday: The Electronic Frontier Foundation has posted a statement on the case, with EFF attorney Kevin Bankston saying: "The government is trying to evade federal privacy law and the Constitution." Yahoo's brief is also worth noting. Like the coalition's filing, it argues that "users have a reasonable expectation of privacy in their e-mails" and says the Fourth Amendment requires police to obtain a warrant to peruse stored messages. And it confirms that prosecutors want "all e-mail" in the targeted Yahoo Mail accounts, even if it's not relevant to the investigation or could include documents protected by the attorney-client privilege.

Update 9:30 a.m. PDT Wednesday: Yahoo has sent over a statement saying: "Yahoo values our trusted relationships with our users and works to protect their privacy while at the same time fulfilling our legal responsibilities. Yahoo's filing in this matter is a public document. Beyond what is contained in that document, Yahoo has no comment on the specifics of the case."

Update 2:20 p.m. PDT Friday: An important update: The Justice Department has abandoned its request for Yahoo e-mail messages. Here's our followup story.

Excerpt from U.S. Department of Justice's brief filed in March 2010, which argues that no search warrant is required to read the correspondence of a Yahoo Mail user. U.S. Department of Justice

Disclosure: The author is married to a Google employee who is not involved in this case.