Page 23 - John Hundley 2009

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Sharp Thinking

No. 27 Perspectives on Developments in the Law from The Sharp Law Firm, P.C. December 2009

Court Compels Internet Service Provider to

Comply with Subpoena to Produce E-mails

By David J. Grindle, Dgrindle@lotsharp.com, 618-242-0246

A federal court for the Central District of Illinois recently granted a United States Attorney’s motion
to compel enforcement of a trial subpoena, instead of a warrant, directed to Microsoft/Hotmail for
previously-opened e-mails stored on its server. United States v. Weaver,
636 F.Supp.2d 769 (C.D. Ill. 2009). The case involved a defendant’s
alleged possession of child pornography, but it may have implications for
privacy of e-mails in other contexts.

In Weaver, the Government sought previously-opened e-mails sent to the
defendant that were being stored on Microsoft’s server and that were less
than 181 days old. Defendant did not object. Microsoft responded via letter
to the Government stating that it objected to the subpoena to the extent that
controlling Ninth Circuit law requires a warrant. Because Microsoft’s
headquarters is in California, Microsoft believed it was bound by Ninth
Circuit precedent from releasing the e-mails without a warrant. The
Government moved to compel production of the e-mails. Grindle

In addressing the issue, the court examined the relation between the Stored Wire and Electronic
Communications and Transactional Records Access Act, 18 U.S.C. § 2701 et seq. (the “Stored
Communications Act”), and the Wire and Electronic Communications Interception and Interception of
Oral Communications Act, 18 U.S.C. § 2510 et seq. (the “Wiretap Act”).

The court observed that under the Stored Communications Act, Microsoft was operating as both
an “electronic communication service” and as a “provider of remote computing services”. Pursuant to
§ 2703(a) of that act, the Government must have a warrant to obtain
electronically-stored communications less than 181 days old. Beyond
181 days, a trial subpoena will suffice. However, § 2703 makes a
distinction between e-mails that are “in electronic storage” or “held or
maintained . . . solely for the purpose of providing storage or computer
processing services to subscriber or customer.”

“If the e-mails the Government requested here are in electronic storage, Microsoft need not
produce them without a warrant, but if they are held or maintained solely to provide the customer
storage or computer processing services, Microsoft must comply with the Government’s subpoena,”

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Sharp Thinking is an occasional newsletter of The Sharp Law Firm, P.C. addressing developments in the law which may be of interest. Nothing contained in Sharp
Thinking shall be construed to create an attorney-client relation where none previously has existed, nor with respect to any particular matter. The perspectives herein
constitute educational material on general legal topics and are not legal advice applicable to any particular situation. To establish an attorney-client relation or to obtain legal
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