In United States v. Weaver, the U.S. District Court for the Central District of Illinois held July 15 that e-mails which have been opened and kept on a web based e-mail service (can we think of one..AOL? Yahoo? Gmail?) which the recipient does not download (I thought that was the purpose of web-based e-mail...so we didn't have to download it), do not qualify as backup copies and therefore are not protected under the Stored Communications Act.

The Stored Communications Act, 18 USC §2701 et seq., monitors, and essentially limits government access to stored electronic communications such as e-mail.

To be granted access to the contents of wire or electronic communications held in "electronic storage" for less than 181 days the government must get a warrant, wchih is issued by a judge rather than a lawyer acting in good faith . However, the government only needs a subpoena, which is issued by a lawyer acting in good faith that the information, documents, etc., are necessary for the case at hand, to obtain the contents of communications that have been in storage for more than 181 days, or that are held or maintained on a "remote computing service . . . solely for the purpose of providing storage or computer processing services to such subscriber or customer . . . ." The court held that if messages have been opened, they are not in "temporary, intermediate storage," and are not protected by the warrant requirement unless they are stored as "backup copies."

According to Judge Jeane E. Scott, the Stored Communications Act differentiates between electronic communications held in "electronic storage" and those "held or maintained on a remote computing service."

The SCA however, does not define either type of storage, but it refers back to the Wiretap Act for definitions.

The Wiretap Act defines "electronic storage" as "any temporary, intermediate storage of a wire or electronic communication incidental to the electronic transmission thereof; and any storage of such communication by an electronic communication service for purposes of backup protection . . . ."

In this case, the court said that opened e-mails stored on Microsoft's MSN Hotmail remote e-mail service did not fall within the Wiretap Act's "electronic storage" definition, unless they were also downloaded to a recipient's computer and saved on the service as a backup copy. As a result, Microsoft was required to turn over those messages in response to a subpoena, the court held.

In Theofel v. Farey-Jones, (9th Cir 2004), the Ninth Circuit held that an ISP wrongfully disclosed e-mails held by a plaintiff's employer in response to a subpoena. The court said that they were stored with the ISP for backup protection, and so were held "in electronic storage" and protected by the warrant requirement.

The Ninth Circuit said that once a user receives an e-mail, any version on the ISP's server is a "backup" copy until the user's version expires.

The court here distinguished the facts from Theofel, because that case considered an e-mail system in which messages were automatically downloaded to a user's computer. Unlike the system at issue there, Hotmail messages are not downloaded to a recipient's computer by default, and are instead stored remotely. "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," the court said, quoting Theofel.

I think the court failed to recognize the issues at play here.  Apparently if you access your email via an exchange server, or through pop or imap access, you are granted different protections than if you just use the web interface.  So, the thechnically proficient receive better protection not just from their email provider but under the law as well.