Before the Warshak case, e-mail on third-party servers was treated much as phone calls had been a century before — and the policy suffered from the same clear inconsistencies. The government needed a warrant to grab e-mail from people's personal computers, it needed a warrant to wiretap their Internet connections in real time, it needed a warrant to read their postal mail, and it needed a warrant to tap their phone calls. But when a person's e-mail was stored off-site on a third-party server — suddenly, no warrant was needed.
The government had an argument to defend this position, the so-called "third-party doctrine." Once the target of surveillance had voluntarily revealed information to someone else, the idea went, it was no longer quite so private and so could be obtained from that third party with a mere subpoena, which didn't require the high "probable cause" standard of evidence. This doctrine explained why remotely stored e-mail was so easy to access under the SCA, despite the fact that no one "reveals" the contents of their e-mail to their e-mail provider in the same way they might show a letter to a friend. Not surprisingly, the third party doctrine has been roundly criticized.
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