Google backs Yahoo in privacy fight with DOJ

[TotallyOz]

This entire article fascinated me. Am I the only one that this worries?

Google and an alliance of privacy groups have come to Yahoo's aid by helping the Web portal fend off broad requests 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 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' whine 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 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, of course, prohibits "unreasonable" searches.

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.

http://news.cnet.com/8301-13578_3-20002423-38.html?part=rss&subj=news&tag=2547-1_3-0-20

[TampaYankee]

Very troubling indeed. I hope Yahoo prevails. I just do not know what this country is coming to anymore. That goes on several fronts.

[MsGuy]

It would be better if Congress would give the courts some guidance on this as it's not at all clear that there's a majority on the Supreme Court right now to extend 4th Amendment protections to online storage and protecting mobile device location logs are a long shot at best (surely you don't want to protect terrorists and drug dealers, do you!!??).

You would think that the conceptual case for the 4th Amendment covering on line activities would be a slam dunk. However mid-20th Century Courts did some theorizing about its application that seemed OK at the time but now, if read too literally, opens the door for law enforcement agences to get into all manner foolishness.

[MsGuy]

Google is disclosing the frequency of government data demands from various countries, apparently in an effort to draw public attention to the issue.

Here is the link to a map of the demands. Google admits the map to be a poor first effort and promises more sophisticated disclosure as it works out better ways to characterize the information. I suspect that they are having to find work arounds to legal restrictions on what they can disclose.