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JUL 18, 2017 @ 08:25 AM

Feds Want 15 Full Google, Microsoft And Yahoo Email Accounts — Judge Says No Way

Some judges really do stand up for individuals’ online privacy.

In Alabama, a court just rejected a government request for access to 15 full email accounts held by Google, Microsoft and Yahoo as part of an identity theft and tax fraud investigation. The reasons were simple: the government was asking for so much data it would have infringed significantly on people’s privacy. In sum, the judge said the government’s request amounted to a “substantial jeopardy to the Fourth Amendment rights of the users of the email accounts.”

Though the July 14 order was made by a magistrate judge and won’t have any legal standing, it marks a rare example of a court making a big pro-Fourth Amendment statement and blocking government access to complete Gmail, Hotmail and Yahoo accounts. The feds were also asking for access to full 1 & 1 Media accounts.

Recent magistrate decisions in cases where Google and Microsoft have sought to protect customer email accounts from investigators have gone in favor of the government. Indeed, as the Alabama judge noted: “One may safely presume substantially more courts have approved of these applications, and issued search warrants, than have denied them.”

The decision could well be cited in ongoing Google, Yahoo and Microsoft battles with the U.S. government, which is asking for emails hosted on the tech titan’s servers, whether hosted in America or elsewhere.

While the warrant applications themselves remain sealed, chief magistrate judge for the United States District Court for the Middle District of Alabama, Wallace Capel, Jr., said law enforcement were asking for too much data and should have limited their requests for certain timeframes or subjects that related to the crime in question.

‘Substantial’ privacy intrusion

“The intrusion on the email users’ privacy is substantial: every significant detail relating to the email account, including the content of every communication ever sent or received, is to be provided to the government for inspection on terms and conditions known only to the government, and to be retained by the government indefinitely with no manifest restriction on the government’s ability to repeatedly review the contents of all email communications,” Judge Capel wrote in his order, published below.

“There is no restriction on the government’s ability to take ‘plain view’ of material that is not pertinent to its current investigation but that might be relevant to some other criminal investigation for which the government has not presented probable cause to search for evidence.”

He also noted that the government had asked for access to accounts that in some cases appeared to be “much less involved” in the crime than others.

“Do three possibly incriminating emails spaced over five minutes one morning in 2017, supposedly in furtherance of an identity theft scheme beginning in 2015, justify the wholesale disclosure and unfettered inspection and retention of every email ever sent or received by that email account, no matter how many years prior to 2017 or 2015 such emails might have originated?” Judge Capel wrote. “If the government can make the case that such overseizure is needed – not just desired, but needed – for the promotion of its interest in investigating a criminal scheme beginning in 2015, then the application before the court does not make it.”

Marina Medvin, of Medvin Law, said she wasn’t surprised the cops were asking for such broad access. “What we have seen throughout our country in the past few years has been a judicial abdication of constitutional requirements with respect to issuance of search warrants. This attempt is simply a reflection of modern ruling,” she said. “This judge is reeling the police back in, saying the Constitution is still the law of the land. I applaud him.”

The government can now appeal, taking the decision to a higher court. They may choose to reword their warrant, or drop the case altogether.

The decision only further highlighted that current legislation around email privacy were hopelessly flawed, said the Center for Technology & Democracy’s Chris Calabrese. “I think the magistrate is applying what should be the standard for Fourth Amendment searches, but isn’t always the standard,” he told Forbes.

Calabrese urged the U.S. to adopt the Email Privacy Act, which increases the burden on agencies to acquire a suitable warrant for online communications. Though it passed the House in February, it faces an uphill struggle to get the green light from the Senate.

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