Appeals Court Allows Yahoo E-Mail Search
Yahoo Inc.’s search of an accused child pornographer’s e-mails without a police officer present did not violate the defendant’s privacy rights, a U.S. appeals court ruled Monday.
The U.S. 8th Circuit Court of Appeals reversed a judge’s decision that barred the use of e-mails as evidence against Dale Robert Bach, who is charged with manufacturing, possessing and transmitting child pornography.
U.S. District Judge Paul Magnuson had ruled that the seizure of the e-mails was unlawful because police weren’t present when Bach’s Yahoo account was searched.
The case is among the first to test whether e-mail may be searched without the direct supervision of law enforcement officers. Yahoo says the requirement is an unreasonable burden on Internet service providers that would disrupt operations.
“Civilian searches are sometimes more reasonable than searches by officers,” a three-judge panel concluded, in a unanimous opinion.
Sunnyvale, Calif.-based Yahoo routinely is served with search warrants by police seeking information about subscribers. In the Bach case, police in St. Paul, Minn., faxed a copy of the search warrant for his e-mails to Yahoo, though officers weren’t present during their retrieval.
The appeals court is based in St. Paul and Monday’s ruling applies in Minnesota, Arkansas, Iowa, Missouri, Nebraska, North Dakota and South Dakota.
“This gives great comfort to Internet service providers,” said Jonathan Band, an attorney with the San Francisco law firm of Morrison & Foerster, who wrote a legal brief on behalf of Yahoo and other Internet providers supporting the government in the Bach case.
Bach’s attorney, Bill Orth, said he intends to ask the full court to look at the Bach case.
He said the panel didn’t assess whether e-mail is entitled to privacy, nor did the judges address the fact that Internet service providers can’t be sued for the way they respond to a warrant.
“They were looking for the easy way out,” Orth said of the decision. “This is not over.”
Orth had argued that e-mail deserves the same privacy protection as letters mailed through the U.S. Postal Service.
Yahoo, the operator of the world’s most popular Internet search engine, said there will be more search warrants for e-mails when the Council of Europe Cybercrime Convention takes effect.
The treaty allows foreign governments to request information from U.S. Internet service providers.
Letting a Yahoo technician make the “first cut” in responding to a warrant reduces the volume of information a police officer must deal with, the company had argued to the 8th Circuit.
Federal prosecutors last year charged Bach with eight counts of possessing, transmitting, receiving and manufacturing child pornography. Bach was convicted in 1995 of molesting a 14-year-old boy.
