IPFS News Link • Privacy Rights
IPFS News Link • Privacy Rights
In the face of stiff resistance
from Yahoo! and a coalition of privacy groups, Internet companies and
industry coalitions led by EFF, the U.S. government today backed down
from its request that a federal magistrate judge in Denver compel
Yahoo! to turn over the contents of a Yahoo! email user's email account
without the government first obtaining a search warrant based on
probable cause.
The EFF-led coalition filed an amicus brief this Tuesday in support of Yahoo!'s opposition to the government's motion,
agreeing with Yahoo! that the government's warrantless seizure of an
email account would violate both federal privacy law and the Fourth
Amendment to the Constitution. In response, the Government today filed
a brief claiming that it no longer had an investigative need for the demanded emails and withdrawing the government's motion.
While this is a great victory for that Yahoo! subscriber, it's
disappointing to those of us who wanted a clear ruling on the legality
and constitutionality of the government's overreaching demand. Such
demands are apparently a routine law enforcement technique. If the
government withdraws its demand whenever an objection is raised by an
email provider or a friend of the court like EFF, however, it robs the
courts of the ability to issue opinions on whether the government's
warrantless email surveillance practices are legal.
This is not the first time the government has evaded court rulings
in this area. Most notably, although many federal magistrate judges and
district courts have ruled that the government may not conduct
real-time cellphone tracking
without a warrant, the government has never appealed any of those
decisions to a Circuit Court of Appeals, thereby preventing the appeals
courts from ruling on the issue. Similarly, a federal magistrate judge
in New York, Magistrate Judge Michael H. Dolinger, has twice invited
EFF to brief the court on applications by the government to obtain
private electronic communications without a warrant, and in each case,
the government withdrew its application rather than risk a ruling
against it (in one case the government went so far as to file a brief anticipating EFF's opposition before finally dropping the case).
The government's unwillingness to face off with EFF in these cases
is certainly flattering, and it speaks volumes about their view of
whether what they are doing is actually legal. But the right answer
here is to let the courts decide, not to have the government turn tail
and run whenever someone seeks real judicial review of their positions.