This month’s Bill of Rights in the News focuses on electronic privacy. The Department of Justice is seeking to obtain from Yahoo “all emails” sent and received by multiple Yahoo email accounts. No search warrant has been issued and the account owners have not been notified. Federal law currently requires the government to obtain a search warrant in order to obtain emails that have been stored less than 180 days. Yahoo has refused to turn over the emails, and the Obama Administration has asked a federal court to order Yahoo to turn over the emails.

Bill of Rights Resources
The Fourth Amendment
http://www.constitutionbee.org/user/StudentGuide.aspx?id=793

§ 2703. Required disclosure of customer communications or records
http://www.law.cornell.edu/uscode/18/usc_sec_18_00002703----000-.html

Katz v. United States (1967)
http://www.oyez.org/cases/1960-1969/1967/1967_35/

News Resources
Yahoo, Feds Battle Over E-Mail Privacy
http://www.wired.com/threatlevel/2010/04/emailprivacy/

Google backs Yahoo in privacy fight with DOJ
http://news.cnet.com/8301-13578_3-20002423-38.html

Discussion Questions

1. What is the Obama Administration seeking to obtain from Yahoo?
   
   It is seeking to obtain “all emails” sent and received by multiple Yahoo email accounts.
   
   
2. How has the Department of Justice (DOJ) justified its claim?
   
   The DOJ has stated that it has “reasonable grounds to believe” the emails “are relevant and material to an ongoing criminal investigation.” (Which case is under seal.)
   
   While the federal Stored Communications Act requires the government to produce a warrant in order to access emails in electronic storage, the DOJ argues that “a previously opened subscriber email is not 'in electronic storage'.” In other words, the DOJ is arguing that once an email has been read, it is no longer protected by the Stored Communications Act.
   
   
3. How has Yahoo responded to the Justice Department’s demand? What constitutional arguments have been used to justify Yahoo’s response?
   
   Yahoo has refused to turn over the emails. Google and several other groups have filed briefs on Yahoo’s behalf arguing that the Fourth Amendment protects stored emails, just as it protects private papers.
   
   
4. How might the ruling in the 1967 case of Katz. v. United States be applied to the lawsuit against Yahoo?
   
   In that case, the Supreme Court held that Fourth Amendment protections apply to “people, not places” and that physical intrusion was not a necessary part of a “search.” Finally, the case introduced the concept that warrants are required in places (physical or otherwise) where individuals have a “reasonable expectation of privacy.” That principle could be applied to this lawsuit in that if the Fourth Amendment would protect a physical storage unit, it should also protect a virtual storage unit.
   


5. What do you think? Do you have a “reasonable expectation of privacy” when your emails are stored by a third party (such as Yahoo or another email provider)? If you ever had an expectation of privacy, do you still have it after an email is 180 days old? Why or why not?
   
   Accept reasoned answers.