U.S. v. Weaver

Citation
United States v. Weaver, 636 F.Supp.2d 769 (C.D. Ill. 2009) (full-text).

Factual Background
The government sought e-mails from Justin Weaver's Microsoft Hotmail account as part of its child pornography investigation. The government executed a subpoena to Microsoft seeking any opened or sent e-mail from Weaver's account. Microsoft produced some e-mails to the government, but failed to produce e-mails that had already been opened and those that had been stored for fewer than 181 days.

Trial Court Proceedings
The court had to determine whether these e-mails were in "electronic storage" under §2703(a), as defined in §2510(17), or "storage" under §2703(b)(2).

If they were in "electronic storage" then the government should have produced a warrant to access them; if they were not, the subpoena would suffice. Noting that the e-mails sought by the government were those already opened, the court concluded that they were not in "temporary, intermediate storage" under subsection (A) of §2510(17).

Turning to subsection (B), the court had to determine if they were being stored for "backup protection." Reviewing the nature of web-based e-mail, which relies on cloud technology, the court observed that "Hotmail users can access their e-mail over the web from any computer, and they do not automatically download their messages to their own computers as non-web-based e-mail service users do. Instead, if Hotmail users save a message, they generally leave it on the Hotmail server and return to Hotmail via the web to access it on subsequent occasions."

The court went to say that the result may differ if the "users opt to connect an e-mail program, such as Microsoft Outlook" to their e-mail accounts and download messages to their own computers.

However, the court concluded that if someone uses a pure cloud-based e-mail system, those e-mails cannot be stored for "backup purposes" under subsection (B) as they would be the only copy of the e-mails. Once the user opened the e-mail and left it on the Hotmail account, Microsoft was "maintaining the messages 'solely for the purpose of providing storage or computer processing services to such subscriber or customer.'"

This made Microsoft an Remote computing service (RCS), rather than an electronic communication service (ECS) provider. Thus, the e-mails were subject only to the subpoena requirement.