E-FILED

Wednesday, 15 July, 2009 12:04:53 PM

Clerk, U.S. District Court, ILCD
IN THE UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION

UNITED STATES OF AMERICA, )

)
Plaintiff, )
)
v. ) No. 09-30036
)
JUSTIN D. WEAVER, )
)
Defendant. )

OPINION

JEANNE E. SCOTT, U.S. District Judge:

This matter comes before the Court on the Government’s Motion to

Compel Compliance With Subpoena to Produce Documents (d/e 12)

(Motion). For the reasons stated below, this Motion is allowed.

FACTS

In pursuing a child pornography charge against Defendant Justin

Weaver, the Government sought to discover the contents of emails it

believes Weaver sent or received at a Microsoft/MSN Hotmail account. The

Government submitted a trial subpoena for the records to the Clerk of

Court on May 15, 2009, and the Clerk issued the subpoena the same day.

On May 19, 2009, the Government executed the subpoena by faxing it to

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Microsoft/MSN (Microsoft), which accepts such service. The subpoena

stated that the Government sought to compel production of “the contents

of electronic communications (not in ‘electronic storage’ as defined by 18

U.S.C. § 2510(17))” and specified that the “[c]ontents of communications

not in ‘electronic storage’ include the contents of previously opened or sent

email.” Motion, Exhibit 1, Subpoena. According to the Government,

Microsoft produced some of the information requested, but it failed to

produce the content of previously accessed, viewed, or downloaded emails

that had been stored for fewer than 181 days. The Government now has

moved to compel production of the contents of these emails.

Neither Weaver nor Microsoft has responded to the Government’s

Motion, but Microsoft asked the Government to include a letter with the

Government’s Motion. Microsoft’s associate general counsel wrote this

letter to the Government explaining that it objected to the Government’s

subpoena to the extent that it requested material that the Ninth Circuit

Court of Appeals has held requires a warrant. Motion, Exhibit 2, Letter.

Microsoft asserts that because its headquarters are located within the Ninth

Circuit, it must comply with Ninth Circuit precedent. The Government

disagrees with Microsoft’s position and has asked the Court to compel

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Microsoft to produce the materials it requested.

ANALYSIS

The issue here is whether a court can compel an Internet Service

Provider (ISP), such as Microsoft, to comply with a trial subpoena and

produce the contents of a subscriber’s opened emails which are less than

181 days old. Based on provisions of the Stored Wire and Electronic

Communications and Transactional Records Access Act (Stored

Communications Act), 18 U.S.C. § 2701, et seq., and the Wire and

Electronic Communications Interception and Interception of Oral

Communications Act (Wiretap Act), 18 U.S.C. § 2510, et seq., a Court can.

The Stored Communications Act governs the disclosure of electronic

communications maintained on computers. It sets forth the methods by

which the Government may obtain electronic communications, such as

email messages, from electronic communication services and providers of

remote computing services. Here, Microsoft acted as both an electronic

communication service and a provider of remote computing services.1

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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).

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 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. Subsection (a), which sets out the

warrant requirement, provides:

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 subpoena is necessary. Id. Further, only a trial subpoena

is necessary for:

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

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 communications for purposes of providing any services other
than storage or computer processing.

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.” Compare 18 U.S.C. § 2703(a) with 18 U.S.C. § 2703(b)(2). If

the emails the Government requested here are in electronic storage,

Microsoft need not produce them without a warrant, but if they are held or

maintained solely to provide the customer storage or computer processing

services, Microsoft must comply with the Government’s subpoena.

This determination turns on the difference between “electronic

storage” and “storage.” Compare 18 U.S.C. § 2703(a) with 18 U.S.C. §

2703(b)(2). Under the Stored Communications Act, these similar terms are

not the same. The Stored Communications Act refers back to the Wiretap

Act for definitions. 18 U.S.C. § 2711. The Wiretap Act does not define

“storage,” but it defines “electronic storage” as:

(A) any temporary, intermediate storage of a wire or electronic

communication incidental to the electronic transmission thereof;
and

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 (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.

See Theofel v. Farey-Jones, 359 F.3d 1066, 1075 (9th Cir. 2004); In re

DoubleClick Inc. Privacy Litig., 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. Theofel, 359 F.3d at 1075.

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:

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 An obvious purpose for storing a message on an ISP’s server
after delivery is to provide a second copy of the message in the
event that the user needs to download it again -- if, for example,
the message is accidentally erased from the user’s own computer.
The ISP copy of the message functions as a “backup” for the
user. Notably, nothing in the Act requires that the backup
protection be for the benefit of the ISP rather than the user.
Storage under these circumstances thus literally falls within the
statutory definition.

Id. at 1070. The Ninth Circuit held that once a user receives an email, any

version on the ISP’s server is a copy that is being stored for backup until the

user’s version “expire[s] in the normal course.” Id. at 1070.

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.” Fischer v. Mt. Olive Lutheran Church, Inc., 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. See James

X. Dempsey, Digital Search & Seizure: Standards for Government Access

to Communications and Associated Data, 970 PLI/Pat 687, 707 (2009).

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

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occasions. Id.2

The distinction between web-based email and other email systems

makes Theofel largely inapplicable here. As the Ninth Circuit acknowledged

in Theofel itself, “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.” Theofel, 359 F.3d at 1070. Users of web-based email systems,

such as Hotmail, default to saving their messages only on the remote

system. A Hotmail user can opt to connect an email program, such as

Microsoft Outlook, to his or her Hotmail account and through it download

messages onto a personal computer, but that is not the default method of

using Hotmail.3 Thus, unless a Hotmail user varies from default use, the

remote computing service is the only place he or she stores messages, and

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, supra, at 707.
3
For information on the use of Hotmail and Outlook together, see
http://www.microsoft.com/downloads/details.aspx?FamilyID=9A2279B1-DF0A-46E1
-AA93-7D4870871ECF&displaylang=en.

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Microsoft is not storing that user’s opened messages for backup purposes.

Instead, Microsoft is maintaining the messages “solely for the purpose of

providing storage or computer processing services to such subscriber or

customer.” 18 U.S.C. § 2703(b)(2). In the case of web-based email

systems, Theofel generally is distinguishable.

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 what would happen when an email

recipient opened an email but then left it on his ISP’s server:

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:

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 (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

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Motion to Compel Compliance With Trial Subpoena to Produce

Documents (d/e 13), Exhibit 5 (unpublished opinion from the District of

Utah, In re Application of the United States of America for an Order

Pursuant to 18 U.S.C. § 2703(d) Directed to Microsoft Corp./MSN, Inc.

Relating to a Hotmail Email Account, issued March 10, 2009).

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) is ALLOWED.

IT IS THEREFORE SO ORDERED.

ENTER: July 15, 2009

FOR THE COURT:

s/ Jeanne E. Scott
JEANNE E. SCOTT
UNITED STATES DISTRICT JUDGE

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