Previously Opened Emails Stored for Less than 181 Days in Web-Based Account May be Obtained by Trial Subpoena

U.S. v. Weaver, 2009 WL 2163478 (C.D. Ill. July 15, 2009) (Not Reported)

In this case, the Government sought to discover the contents of defendant’s email sent or received at a Microsoft/MSN Hotmail account. Accordingly, the Government executed a trial subpoena seeking production of “‘the contents of electronic communications (not in ‘electronic storage’ as defined by 18 U.S.C. § 2510(7)’ and specified that the ‘[c]ontents of communications not in ‘electronic storage’ include the contents of previously opened or sent mail.’”  Microsoft declined to produce the content of previously accessed, viewed, or downloaded emails that had been stored for fewer than 181 days citing precedent from the Ninth Circuit Court of Appeals that such production would require a warrant.  Because Microsoft is located within the Ninth Circuit, it felt it must comply.  The Government sought to compel production.

Ultimately, the court determined that production of the emails at issue could be compelled by trial subpoena.  To arrive at that conclusion, the court looked primarily to The Stored Communications Act (“The Act”) which governs the disclosure of electronic communications maintained on computers, including the need for a trial subpoena versus a warrant.  After undertaking a statutory analysis, the court determined that the applicability of the warrant requirement turned on whether the emails were “in electronic storage” which itself turned on the purpose for which the emails were stored in defendant’s Hotmail account:  “the question [was] whether the emails were in storage ‘for the purpose of backup protection’ in which case they [were] in ‘electronic storage’ and protected by the warrant requirement.”  That is to say, if the emails were being stored by Microsoft for the purpose of backup protection, they were subject to the warrant requirement.

The court then turned to the Ninth Circuit case cited by Microsoft, Theofel v. Farey-Jones, noting that the Seventh Circuit had not previously addressed the issue. 359 F.3d 1066 (9th Cir. 2004).  In Theofel, a civil defendant subpoenaed emails held on his former employer’s ISP.  The ISP granted the defendant access to those mails remaining on its server “after users received them through their workplace email program.”  The Ninth Circuit determined such production violated The Act “in part because it found that the emails were stored for backup protection and thus were in electronic storage” (which requires a warrant to compel production.):

An obvious purpose for storing a message on an ISP’s server after delivery is to provide a second copy of the message in the event that the user needs to download it again–if, for example, the message is accidentally erased from the user’s own computer.  The ISP copy of the message functions as a "backup" for the user. Notably, nothing in the Act requires that the backup protection be for the benefit of the ISP rather than the user.  Storage under these circumstances thus literally falls within the statutory definition.

The Ninth Circuit further held that “once a user receives an email, any version on the ISP’s server is a copy that is being stored for backup until the user’s version ‘expire[s] in the normal course.’”

Finding Theofel inapplicable in this case (and ultimately concluding that “[i]n the case of web-based emails Theofel generally is distinguishable”), the court reasoned:

The Ninth Circuit’s reasoning here relies on the assumption that users download emails from an ISP’s server to their own computers.  That is how many email systems work, but a Hotmail account is "web-based" and "remote."  Hotmail users can access their email over the web from any computer, and they do not automatically download their messages to their own computers as non-web-based email service users do.  Instead, if Hotmail users save a message, they generally leave it on the Hotmail server and return to Hotmail via the web to access it on subsequent occasions. [Citations omitted.]

The court further found that to the extent Theofel was on point, it was unpersuasive in light of the court’s inability to reconcile the outcome with legislative history and other provisions of The Act, as discussed in the court’s opinion.

Briefly noting two previously sealed opinions in which two other district courts agreed with their reading of the statute, the court granted the motion to compel:

Previously opened emails stored by Microsoft for Hotmail users are not in electronic storage, and the Government can obtain copies of such emails using a trial subpoena. Microsoft must comply with the Government’s subpoena here.

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