[T]he Department of Justice may be hamstrung in any prosecution of this invasion of privacy by its restrictive view of "electronic storage." The [Stored Communications Act] prohibits unauthorized "access to a wire or electronic communication while it is in electronic storage." ...Under Ninth Circuit precedent, both received and unreceived emails are in electronic storage.But the DOJ disagrees with that interpretation, arguing:
"If the recipient chooses to retain a copy of the communication on the service provider's system, the retained copy is no longer in 'electronic storage' because it is no longer in 'temporary, intermediate storage ... incidental to ... electronic transmission,' and neither is it a backup of such a communication."
Leaving the EFF to conclude:
The DOJ's interpretation of the SCA means that any emails that Gov. Palin had already opened (but left on the Yahoo! Mail servers) would not be protected under this email privacy law.This could lead to one of those ugly situations where the DOJ has to sue itself! To me, though, there's a larger issue: Why isn't the fact that Gov. Palin eagerly set up an ridiculously hackable personal email account with which to conduct official state business being discussed? Besides being arguably illegal, it reveals anything from incredible naivete to poor judgment on the part of the GOP vice presidential nominee. Fortunately, these glaring deficiencies are more than offset by Gov. Palin's confidence, her readiness and her unblinking readiness in that confidence!
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