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Google and friends back bid to block warrantless email search

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A coalition of civil liberties groups has joined Yahoo! in its bid to block a government attempt to read messages in a Yahoo! email account without a search warrant.

The Department of Justice is seeking the documents in a case that is under seal, and apparently, the agency hasn't notified the account holder of the request, according to the Electronic Frontier Foundation, one of the groups opposing the move. The groups argue that federal law and the Constitution's Fourth Amendment clearly require the government to get a search warrant that's based on probable cause a crime has been committed.

Government attorneys, meanwhile, have said a warrant isn't needed because the emails have already been read. They've also claimed that the unidentified user has no expectation that his emails are private because Yahoo has the technical ability to access them.

"The mere fact that a service provider has the ability to access email messages does not defeat the user's expectation of privacy in their contents, just as the fact that telephone wires lead outside the home does not extinguish the Fourth Amendment rights of those talking over the telephone lines, and just as the fact that one has a roommate or is renting a room does not defeat Fourth Amendment protection in one's home or hotel room," the groups wrote in a friend-of-the-court brief (PDF) filed on Tuesday.

According to the brief, the government claims that under the Stored Communications Act, the emails don't count as "electronic storage" and therefore receive less privacy protection than do unread messages. Yahoo! is fighting the search request.

In addition to the EFF, other groups that filed Tuesday's brief include Google, the Center for Democracy and Technology, and the Samuelson-Glushko Technology Law & Policy Clinic. ®

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