Page 24 - John Hundley 2009

the Court said, adding that the determination “turns on the difference between ‘electronic storage’ and
‘storage.’”

According to the court, the Stored Communications Act does not define those
terms, so one refers to the Wiretap Act. While the Wiretap Act does not define
“storage” it does define “electronic storage” as the temporary or intermediate
storage of electronic communication incidental to transmission or storage held as a
backup protection. Because the e-mails had been opened, the court concluded
that they were not in temporary or intermediate storage. The next question is
whether the e-mails were in storage for backup protection. This is because if the e-mails are in either
temporary storage or backup storage, they are protected by the warrant requirement.

Microsoft relied on a Ninth Circuit case arguably holding that any open e-mail stored on a server of
an Internet Service Provider (“ISP”) was stored for backup protection. Theofel v. Farey-Jones, 359
F.3d 1066 (9th Cir. 2004). However, according to the Weaver court, the Theofel panel misunderstood
how ISP e-mail services work. The Ninth Circuit “relie[d] on the assumption
that users download e-mails from an ISP’s server to their own computers,” it
said However, the court pointed out that the Hotmail account in question was
“‘web-based’ and ‘remote.’” The Stored Communications Act was written when
most e-mail users downloaded e-mails from the web and they were stored on
the user’s computer. Often the act of downloading deleted the e-mail from the
ISP’s server. In contrast, on a web-based or remote e-mail service, the e-mail
remains on the ISP’s server after being opened. The user can return to it by logging on from any
computer.

The difference between web-based and other e-mail systems is a crucial distinction. In Theofel,
the Ninth Circuit recognized the distinction but did not apply it. “‘A remote computing service might be
the only place a user stores his messages; in that case, the messages are not stored for backup
purposes,’” both courts noted. In Weaver, defendant was using a web-based Hotmail account. While
Hotmail and other e-mail systems can be set up via a program such as Microsoft Outlook to store
messages for backup on a personal computer, the default setting is to store the messages on the
remote server. If Hotmail is used in the default setting, Microsoft is not storing the e-mail for backup
purposes as defined by the Stored Communications Act. Instead, “Microsoft is maintaining the
messages ‘solely for the purpose of providing storage or computer processing services to such
subscriber or customer,’” the Weaver court said, quoting § 2703.

Accordingly, the court found that defendant’s previously-opened e-mails stored by
Microsoft/Hotmail were not in electronic storage, and it ruled the Government could
obtain the e-mails with a trial subpoena instead of a warrant.
The moral of the story is don’t send (or receive) e-mails that you don’t want to be

discovered – and don’t use web-based e-mail for storing old messages!
John\Sharp Thinking\#27.doc
Brenda\Sharp Thinking\#27.doc
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