Gov't can subpoena e-mails on Hotmail less than 181 days old, cf 18 U.S.C. § 2703(a) with 18 U.S.C. § 2703(b)(2).

Here, Microsoft acted as both an electronic communication service and a provider of remote computing services.

Under section 2703, governmental entities must use a warrant to obtain certain types of electronic communications, but they can access others using only a trial subpoena.

An electronic communication service is "any service which provides to users thereof the ability to send or receive wire or electronic communications." 18 U.S.C. § 2510(15); 18 U.S.C. § 2711(1) (making the Wiretap Act's definitions applicable to the Stored Communications Act). A provider of remote computing services provides "to the public . . . computer storage or processing services by means of an electronic communications system." 18 U.S.C. § 2711(2).

A governmental entity may require the disclosure by a provider of electronic communication service of the contents of a wire or electronic communication, that is in electronic storage in an electronic communications system for one hundred and eighty days or less, only pursuant to a warrant issued using the procedures described in the Federal Rules of Criminal Procedure by a court with jurisdiction over the offense under investigation or equivalent State warrant.

18 U.S.C. § 2703(a). Where an electronic communication "has been in electronic storage in an electronic communications system" for at least 181 days, only a trial *771771 subpoena is necessary.

any wire or electronic communication that is held or maintained on [a remote computing] service —

(A) on behalf of, and received by means of electronic transmission from (or created by means of computer processing of communications received by means of electronic transmission from) a subscriber or customer of such remote computing service; and

(B) solely for the purpose of providing storage or computer processing services to such subscriber or customer, if the provider is not authorized to access the contents of any such *5

18 U.S.C. § 2703(b)(2). Thus, for emails less than 181 days old, the question of whether a warrant is necessary turns on whether the emails are "in electronic storage" or are "held or maintained . . . solely for the purpose of providing storage or computer processing services to [the] subscriber or customer."

This determination turns on the difference between "electronic storage" and "storage."

(A) any temporary, intermediate storage of a wire or electronic communication incidental to the electronic transmission thereof; and

*6

(B) any storage of such communication by an electronic communication service for purposes of backup protection of such communication. . . .

18 U.S.C. § 2510(17). Because the emails here have been opened, they are not in temporary, intermediate storage incidental to electronic transmission. th Cir. 2004); 154 F.Supp.2d 497, 512 (S.D.N.Y. 2001). The question is whether the emails are in storage "for purposes of backup protection," in which case they are in "electronic storage" and protected by the warrant requirement.

The Seventh Circuit has not addressed this issue, but Microsoft relies on a Ninth Circuit case to assert that the requested emails are in storage for backup protection. In Theofel v. Farey-Jones, a civil defendant subpoenaed emails held on the ISP of the plaintiffs' employer. Theofel, 359 F.3d at 1071. The ISP granted the defendant's attorneys access to emails that remained on its server after users received them through their workplace email program. Id. at 1075. The Ninth Circuit concluded that this production violated the Stored Communications Act, in part because it found that the emails were stored for backup protection and thus were in electronic storage. Id. at 1071. According to the Ninth Circuit: *7

The Ninth Circuit's reasoning here relies on the assumption that users download emails from an ISP's server to their own computers. That is how many email systems work, but a Hotmail account is "web-based" and "remote." 207 F.Supp.2d 914, 917 (W.D. Wis. 2002). Hotmail users can access their email over the web from any computer, and they do not automatically download their messages to their own computers as non-web-based email service users do.8

2.

This article explains the distinction between web-based and other email systems as follows:

In the past, particularly at the time when [the Stored Communications Act] was written, many email users accessed their email by downloading it onto their personal computers. That process often resulted in the deletion of the email from the computers of the service provider. Now, many users' email, especially their private as opposed to business email — including email that has been read but which still has value to the user — sits on a third party server accessible via the Web.

Dempsey,

The distinction between web-based email and other email systems makes 3 Thus, unless a Hotmail user varies from default use, the remote computing service is the only place he or she stores messages, and *9

3.

For information on the use of Hotmail and Outlook together, see http://www.microsoft.com/downloads/details.aspx?FamilyID=9A2279B1- DF0A-46E1-AA93-7D4870871ECFdisplaylang=en.

Moreover, to the extent that Theofel is on-point, the Court finds it unpersuasive. The Ninth Circuit's interpretation of storage for backup protection under the Stored Communication Act cannot be squared with legislative history and other provisions of the Act. In 1986, drafters of the Stored Communications Act considered *773

Sometimes the addressee, having requested and received a message, chooses to leave it in storage on the service for re-access at a later time. The Committee intends that, in leaving the message in storage, the addressee should be considered the subscriber or user from whom the system received the communication for storage, and that such communication should continue to be covered by section 2702(a)(2).

H.R. Rep. No. 99-647, at 65 (1986). Section 2702(a)(2) provides that an entity offering the public remote computing service cannot knowingly divulge to any entity the contents of any communication maintained on the service: *10

(A) on behalf of, and received by means of electronic transmission from (or created by means of computer processing of communications received by means of electronic transmission from), a subscriber or customer of such service;

(B) solely for the purpose of providing storage or computer processing services to such subscriber or customer, if the provider is not authorized to access the contents of any such communications for purposes of providing any services other than storage or computer processing.

18 U.S.C. § 2702(a)(2). This is the identical language used to describe electronic communications that the Government can obtain by trial subpoena.

Thus, if the Stored Communications Act drafters intended emails a user leaves on an email service for re-access at a later date to be covered by section 2702(a)(2), they also must have intended them to be covered by the Government's trial subpoena power. Any other reading fails to reconcile these two sections of the statute. Indeed, the Government has provided the Court two previously sealed opinions in other cases showing that at least two other district courts agree with this reading of the statute.See Motion, Exhibit 4 (unpublished opinion from the Middle District of Georgia, In re Grand Jury Subpoena Issued Pursuant to 18 U.S.C. § 2703(b)(1)(B), issued April 29, 2005); Notice of Supplemental Authority Re: Government's*11

Previously opened emails stored by Microsoft for Hotmail users are not in electronic storage, and the Government can obtain copies of such emails using a trial subpoena. Microsoft must comply with the Government's subpoena here.

THEREFORE, the Government's Motion to Compel Compliance With Subpoena to Produce Documents (d/e 12)WAS ALLOWED.