The Sixth Disctrict court of appeals did address this directly in US v Warshak [0]. What this scare article does a good job of is confusing the reader.
Unopened email left on a 3rd party server for longer than 180 days was considered discarded or abandoned property. Discarded physical property has never retained a reasonable expectation of privacy (for instance, the police are free to dumpster dive once your property is considered discarded). Similarly when you vacate an apartment and leave all your belongings behind, they become the property of the landlord. These are firmly established principles of common law. The waters become more grey when you are not using the 3rd party for communication but for storage, say for emails you have read and leave on the server for 180+ days. [1]
So in this case Congress wanted to establish a new right to privacy that required a warrant on rather vague and nebulous grounds. It was dropped and so the status quo remains.
All the people here complaining apparently have no idea what the law of the land currently is? Email communications residing on a third-party server for less than 180 days that offers services to the public can not be obtained without a warrant. Notification of the issuance of a warrant could be delayed by 90 days. This does not apply to 3rd party services that do not offer services to the public. They can voluntarily disclose content at their whim.
If you believe my understanding to be flawed I welcome the opportunity to be corrected.
Anything we can do to proactively claim or declare our emails older than 180 days to be not discarded and not abandoned? Or move them to a new server periodically so that they aren't stored in a server for more than 180 days?
From Wikipedia [1]: "Property is generally deemed to have been abandoned if it is found in a place where the true owner likely intended to leave it, but is in such a condition that it is apparent that he or she has no intention of returning to claim it."
I'm winging it here, but Gmail could have an optional feature to prompt every three months "do you claim your mail from January 2005 to December 2012?", and just answer yes every time. Then Google could respond to be subpoena that the user has no mail that has not been claimed in 180 days.
Any lawyers here who can come up with something more solid?
Google already does not fulfill subpoenas for email seizures in many cases due to the decision in Warshak - their contention is that they cannot be sure if the user resides or uses their email under the jurisdiction of the Sixth Circuit.
It's puzzling to think about why Warshak wasn't appealed to the Supreme Court (SC), where a decision would have federal instead of regional consequences. The Justice Department most likely felt such a move could easily end in the SC siding with the Sixth, ending the free lunch on electronic communications seizures that law enforcement currently enjoys.
Google's particular problem, in my humble opinion, is that the protections do not apply to non-content portions of the communication. For example, the government does not need a warrant to require production of the smtp logs, just as they don't need a warrant to see what phone numbers you called whereas listening to those same conversations does require court authority.
Google unlike most other email providers is going through the content of every email (I assume prior to its being read by the user) and indexing its contents for the purposes of determining relevant advertising (and whatever else they do with that info about which I admittedly know very little).
I would wager that those indexes might fall under the "log" rather than "content" aspect and therefore their production would not be subject to warrant if they are keeping it stored somewhere; but, that's for someone receiving a higher pay grade to determine.
Cert for Warshak was not sought by either party most likely because the outcome of the appeal was largely in the govt's favor. Most of the convictions stood while only some were remanded. So I imagine it wasn't in either parties' best interest to roll the dice again. Finally, the precedent established in Warshak is applicable in the other horizontal jurisdictions. I would find it hard to believe any of the other appellate courts would go against its sound reasoning. But I guess the point stands that if you want to be safe you should ensure your servers reside in the jurisdiction of the Sixth!
This is the most informed post here so far. A couple of important points to add.
The problem is 2703(f). It allows a government entity to request a snapshot of a user's account "pending the issuance of a court order or other process", meaning that 180 days later, the government can just issue a subpoena - they get their foot in the door and then come back later with the lowered bar, and only need a subpoena. Same effect as not having warrant protection.
http://www.law.cornell.edu/uscode/text/18/2703
It's important to point out that the 90-day notification can be renewed indefinitely, pursuant to 2703(f)(2), which is probably a breach of what the 4th Amendment intended.
The concurring opinion authored by Judge Keith was directly on point of your second paragraph regarding the indefinite renewal constituting an illegal wiretap. It concludes that 2703(f) is vacuous as it is clearly fails constitutionality for this reason. [0]
I'm sure the irony that such an important case is based on the illegal money laundering of a company peddling a penis-enlarging drug scam will not be lost. Remember Enzyte and the smiling Bob ads? I'm still amazed how easily they got so many merchant accounts given their chargeback rates but I guess that's what fraud will get you.
The landlord doesn't get to go through my stuff while I still live there, though. Just because I have boxes in the garage I haven't opened in six months doesn't mean they're up for grabs.
But that's a dumb law. If the company can keep my e-mail "forever", then I expect it to be private forever. What kind of arbitrary rule is this that they can start looking into my e-mail after 180 days?
Unopened email left on a 3rd party server for longer than 180 days was considered discarded or abandoned property. Discarded physical property has never retained a reasonable expectation of privacy (for instance, the police are free to dumpster dive once your property is considered discarded). Similarly when you vacate an apartment and leave all your belongings behind, they become the property of the landlord. These are firmly established principles of common law. The waters become more grey when you are not using the 3rd party for communication but for storage, say for emails you have read and leave on the server for 180+ days. [1]
So in this case Congress wanted to establish a new right to privacy that required a warrant on rather vague and nebulous grounds. It was dropped and so the status quo remains.
All the people here complaining apparently have no idea what the law of the land currently is? Email communications residing on a third-party server for less than 180 days that offers services to the public can not be obtained without a warrant. Notification of the issuance of a warrant could be delayed by 90 days. This does not apply to 3rd party services that do not offer services to the public. They can voluntarily disclose content at their whim.
If you believe my understanding to be flawed I welcome the opportunity to be corrected.
[0]: https://www.eff.org/deeplinks/2010/12/breaking-news-eff-vict...
[1]: http://en.wikipedia.org/wiki/Stored_Communications_Act#Overv...