In December 2009, prosecutors in Colorado requested that a Federal Judge compel Yahoo to turn over the contents of a user's email account without first obtaining a search warrant based on probable cause. This resulted in a rare partnership between Yahoo and Google to fight off the government demands and protect user privacy.

A Coalition comprised of the Electronic Frontier Foundation, the Center for Democracy and Technology, the Progress and Freedom Foundation, the Computer and Communications Industry Association, and TRUSTe, filed an “amicus brief” with the court agreeing with Yahoo that the seizure of an email account without a warrant would violate both federal privacy law and the Fourth Amendment to the Constitution.

(A “friend of the court” files an amicus brief; this is someone not a party to the case who offers information on a point of law or some aspect of the case in order to assist the court with its decision.)

The brief filed by the Coalition states that the court should "reject the government's attempted end-run around the Fourth Amendment and require it to obtain a search warrant based on probable cause before searching and seizing e-mails without prior notice to the account holder.”

The Bill of Rights' Fourth Amendment prohibits unreasonable searches and, in general, has been interpreted to mean warrant-less searches are unreasonable.

In the face of such strong opposition the government backed down resulting in a win for the e-mail user at this point in time but leaves the issue unclear for future instances, as there is no judgment by the court.

The Electronic Frontier Foundation (EFF) and Digital Due Process are spearheading efforts for clarifying and protecting electronic forms of communication. At this point in time there are conflicting and unclear standards which not only leave users with confusion about security but waste Law Enforcement resources on litigation.

One option being supported is updating the 1986 Electronic Communications Privacy Act (ECPA), which has long been surpassed by technology that wasn’t available when these standards were created.

Among new advances that are not specifically covered are:

• E-mail
• Mobile Location and “Real-Time” Tracking
• Cloud Computing (online data storage) and
• Social Networking

These groups are proposing the following:

• Technology and Platform Neutrality: The idea here is that any particular type of communication should receive the same protection across the board regardless of the format. For example, private communication on e-mail that is stored on a server should receive the same rights as a letter received in the mail and stored in a closet shoebox.
• Assurance of Law Enforcement Access: This portion guarantees Law Enforcement the same tools used for criminal investigation today as well as existing conditions including emergency access.
• Equality Between Transit and Storage: This basically assures the same level of privacy whether the communication type is in transit or stored. In other words, if the government must have a warrant for the letter you get in the mail, they can’t circumvent that by stopping the mailman and retrieving the letter before you receive it. In the case of e-mail they could not intercept and view communications before they reached the users inbox.
• Consistency: The content of communications should be protected whether opened or not.

If these groups succeed it will provide users with the ability to determine what types of communication afford them privacy and which do not in a simple, clear and concise manner. We will be following developments so be sure to check back at a later date for more information.