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.