## Facts

- The United States prosecuted Justin D. Weaver on federal child-pornography charges.
- The government sought contents of emails associated with Weaver’s Microsoft/MSN Hotmail account.
- A trial subpoena under Federal Rule of Criminal Procedure 17(c) issued on May 15, 2009, and was served on Microsoft by fax on May 19, 2009.
- The subpoena requested contents of electronic communications “not in ‘electronic storage’” as defined in 18 U.S.C. § 2510(17), including previously opened or sent emails.
- Microsoft produced some information but refused to produce contents of previously accessed emails stored for fewer than 181 days, asserting that a warrant was required under Ninth Circuit authority.
- The government moved to compel Microsoft’s compliance with the subpoena.

## Issues

1. Whether the Stored Communications Act permits compelling an email provider, via a Rule 17(c) trial subpoena, to disclose contents of a subscriber’s previously opened emails stored for fewer than 181 days.
2. Whether such opened emails are excluded from “electronic storage” under 18 U.S.C. § 2510(17), making warrant procedures inapplicable.
3. Whether the court should apply a Ninth Circuit warrant requirement where the provider asserted it was bound by Ninth Circuit precedent.

## Decision

- The court granted the government’s motion to compel compliance with the subpoena.
- The court held that, for previously opened web-based emails retained on the provider’s servers, the provider functioned as a remote computing service for SCA purposes.
- The court concluded the requested opened emails were not in “electronic storage” within § 2510(17) and therefore were not subject to the SCA’s warrant requirements tied to short-term “electronic storage” by an electronic communication service.
- The court declined to apply Ninth Circuit interpretations and applied its own reading of the SCA as a Seventh Circuit district court.
- Microsoft was ordered to produce the contents of the previously opened emails, including those stored fewer than 181 days.

## Legal Principles

- The SCA’s compelled-disclosure rules depend on whether the provider is acting as an electronic communication service (ECS) holding communications in “electronic storage” or as a remote computing service (RCS) storing communications for the user after access.
- Previously opened emails retained on a webmail provider’s servers may be treated as outside “electronic storage” as defined by 18 U.S.C. § 2510(17).
- When communications are obtained from an RCS rather than ECS “electronic storage,” the SCA may allow compelled disclosure through a Rule 17(c) subpoena rather than a probable-cause warrant.
- A federal district court applies controlling law in its own circuit and is not bound by another circuit’s statutory interpretation.

## Conclusion

The court compelled Microsoft to produce contents of Weaver’s previously opened Hotmail emails, holding that the SCA allowed a Rule 17(c) trial subpoena—without a warrant—because the provider was acting as an RCS for opened emails and the material was not in statutory “electronic storage.”


United States v. Weaver, 636 F. Supp. 2d 769 (C.D. Ill. 2009)