In the Cloud, Warrants are for the Birds? Posted By Daniel Kaiser, Esq. on August 14, 2009
I see skies of blue – and clouds of white – a bright blessed subpoena! You mean warrant, right?
Nope. We respect you for trying, but they meant subpoena. (…what a wonderful world…)
In U.S. v. Weaver, a Seventh Circuit district court addressed the question of whether a court can, via subpoena, compel an Internet Service Provider’s 
(Microsoft’s) production of a subscriber’s opened emails which are less than 181 days old. 2009 WL 2163478 (C.D.Ill.) This was a case of first impression for the Seventh Circuit, and it clarified Theofel v. Farey-Jones, a previous Ninth Circuit ruling. 359 F.3d 1066 (9th Cir. 2004). Whereas the court in Theofel found that circumstances called for the use of a warrant, the Seventh Circuit in Weaver said that a subpoena would suffice.
In Weaver, seeking Defendant’s Hotmail records, the Government submitted a trial subpoena to Microsoft requiring the production of “the contents of electronic communications [emails] (not in ‘electronic storage’ as defined by 18 U.S.C. § 2510(17)).” The Government specified that this would “include the contents of previously opened or sent email.” Microsoft, in turn, replied that due to its location (headquartered Redmond, Washington, in the Ninth Circuit), it was bound by the Ninth Circuit precedent found in Theofel which required the use of a warrant to obtain such records from an ISP.
The Hon. Jeanne Scott of the Central District of Illinois pointed to the Stored Communications Act 18 U.S.C. § 2701, et seq., and the Wiretap Act 18 U.S.C. § 2510, et seq. to resolve the issue. The language leading to a warrant requirement in Theofel was found in § 2703(a), stipulating that governmental entities requiring disclosure by providers of electronic communications service of electronic communications in electronic storage for 181 days or less must obtain and present a warrant based upon probable cause. Yet on the other hand, subsection (b) allows the government to procure similar emails less than 181 days old that are “held or maintained . . . solely for the purpose of providing storage or computer processing services to such subscriber or customer . . . .”
The question: in Weaver, were Defendant’s emails “in electronic storage” – subject to the warrant requirement – or were they “held or maintained . . . solely for the purpose of providing storage or computer processing services” (etc.) and thus available via subpoena?
As defined by the Wiretap Act, because the emails were opened, the only way they could have been in “electronic storage” would be if they were in storage “for purposes of backup protection of such communication . . . .” 18 U.S.C. § 2510(17)(B). This is where the facts in Weaver differ from those in Theofel. In Theofel the Ninth Circuit was addressing an email system in which users downloaded messages from their ISP to their local hard drive. With such systems, residual copies of an already-downloaded email remaining on the ISP’s server could be kept for backup protection until the user’s copy “expire[s] in the normal course.” Theofel, 359 F.3d at 1070. Yet today we’re seeing more and more use of web-based (cloud-based) email systems.
In Weaver, this was the situation addressed by the Seventh Circuit. Here, the Defendant was using Microsoft’s cloud-based Hotmail email. The Ninth Circuit itself, in Theofel, pointed out that “[a] remote computing service might be the only place a user stores his messages; in that case, the messages are not stored for backup purposes.” Id.
So both courts appear to agree that web-based email falls into the provisions of § 2703(b), meaning the government is free to compel production from an ISP via subpoena. Or, per the same subsection, the government may even compel production without notice if it wishes to secure a warrant. But going even further, the Seventh Circuit faulted the Ninth Circuit’s analysis as “unpersuasive” and as out of step with “legislative history and other provisions of the Act.” In drafting the Stored Communications Act, the drafters noted the case in which an addressee receives an email yet chooses to leave it in storage on the ISP’s server for later re-access. The drafters said that “such communication should continue to be covered by section 2702(a)(2)” – a section that reads identically to the provision allowing the Government access by trial subpoena.
In light of statements that have come from the executive branch along with various other court decisions referring to a diminished “expectation of privacy” in the use of cloud-based computing, the lowered level of Due Process protection represented by this decision really isn’t such a surprise.
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