This didn't seem possible. Warshak's e-mail provider, NuVox, deleted his messages from its servers after Warshak's computer grabbed a copy of them. To get access to the messages, the feds should have had to (1) infiltrate Warshak's computer or (2) wiretap Warshak's Internet connection to look for e-mail on the wire. But there had been no software subterfuge and no Internet wiretap. Instead, government lawyers had sent NuVox a letter on October 25, 2004, demanding that the company "preserve" copies of Warshak's future e-mails. The company complied without notifying Warshak, maintaining a private cache of all his messages rather than deleting them when his computer downloaded copies. The feds then returned twice in 2005 with court orders — but not with the much-harder-to-get warrants — to collect the e-mails that had been "preserved" for them.
The Stored Communications Act (SCA) covers situations like this one in which user data is held by a third-party service like NuVox or Google or Yahoo and is stored on that company's servers, and it makes that data fairly simple to get. Full warrants are often not required, in part because such surveillance is "retrospective;" the government gets access only to messages already stored on the server by a suspect. Even the name of the act makes this distinction clear—it was meant to cover "stored" material.
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In Warshak's case, the government had used a retrospective process to gain access to prospective messages. The SCA does allow the government to issue "preservation" requests, but these apply only to existing records that might be at risk of deletion; they do not apply to future messages. The Department of Justice's own surveillance manual made this clear even at the time, reminding agents that preservation requests "have no prospective effect....[Preservation] letters can order a provider to preserve records that have already been created, but cannot order providers to preserve records not yet made."
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