For its part, the Justice Department has taken a legalistic approach: a 17-page brief it filed last month acknowledges that federal law requires search warrants for messages in "electronic storage" that are less than 181 days old. But, Assistant U.S. Attorney Pegeen Rhyne writes in a government brief, the Yahoo Mail messages don't meet that definition.
"Previously opened e-mail is not in 'electronic storage,'" Rhyne wrote in a motion filed last month. "This court should therefore require Yahoo to comply with the order and produce the specified communications in the targeted accounts." (The Justice Department's position is that what's known as a 2703(d) order--not as privacy-protective as the rules for search warrants--should let police read e-mail.)
On December 3, 2009, U.S. Magistrate Judge Craig Shaffer ordered Yahoo to hand to prosecutors certain records including the contents of e-mail messages. Yahoo divulged some of the data but refused to turn over e-mail that had been previously viewed, accessed, or downloaded and was less than 181 days old.