This is the Cato Daily Podcast for Thursday, April 22nd, 2010.

I'm Caleb Brown.

After some serious pushback from a broad coalition of privacy groups and corporations, the Justice Department has learned

that it probably needs a warrant to ask email providers for copies of your email.

Believe it or not, this is a recent development. Jim Harper, Director of Information

Policy Studies at the Cato Institute, explains. Last week the Department of

Justice dropped a position it was holding in the district court in Colorado and it's a very

interesting step on the path toward Fourth Amendment protection for email

which is really poorly protected at this point.

In a dispute with Yahoo, acting as an email service provider, the Department of Justice argued that it should access emails that had been opened and were held on the servers of Yahoo's email product.

Under the Stored Communications Act, it's unclear whether emails that have been opened and have been held for less than 180 days are protected or not.

And DOJ was trying to take advantage of this ambiguity

to get access to these emails and Yahoo was resisting it.

Why is it relevant that the emails would be opened or stored kept for less than or

more than 180 days? Well the Stored Communications Act which is part of the Electronic Communications Privacy Act, has these sort of arbitrary and obscure rules that nobody really knows how to apply very well to the newer communications

that we have and it continues to struggle. The law does with continuing advances

in communications, different and new forms of communicating.

So the Stored Communications Act and the Electronic Communications Privacy Act are both a little dated,

but courts and litigators go through these exercises in interpreting

these laws. There is a reform movement underway right now with broad-based

support to Reform Eqba and that's good news. A lot of different groups

representing a lot of the public policy spectrum if you will. Google Center for Democracy

...