Attorney Evan D. Brown discusses a case that sheds some light on how courts may view a privacy invasion claim of “intrusion on seclusion” when a firm’s employee email is hosted in the cloud:
Local elected official Steinbach had an email account that was issued by the municipality. Third party Hostway provided the technology for the account. Steinbach logged in to her Hostway webmail account and noticed eleven messages from constituents had been forwarded by someone else to her political rival.
Steinbach sued the municipality, her political rival and an IT professional employed by the municipality. She brought numerous claims, including violation of the Federal Wiretap Act, the Stored Communications Act, and the Computer Fraud and Abuse Act. She also brought a claim under Illinois common law for intrusion upon seclusion, and the court’s treatment of this claim is of particular interest.
Finally, the defendant argued that the intrusion was authorized, looking to language in the Federal Wiretap Act and the Stored Communications Act that states there is no violation when the provider of an electronic communication services intercepts or accesses the information. The court rejected this argument, finding that even though the municipality provided the email address to Steinbach, Hostway was the actual provider. The alleged invasion, therefore, was not authorized by statute.
The court’s analysis on this third point could have broader implications as more companies turn to cloud computing services rather than hosting those services in-house. In situations where an employer with an in-house provided system has no policy getting the employee’s consent to employer access to electronic communications on the system, the employer—as provider of the system—could plausibly argue that such access would be authorized nonetheless. But with the job of providing the services being delegated to a third party, as in the case of a cloud-hosted technology, the scope of this exclusion from liability is narrowed.
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The case is Steinbach v. Village of Forest Park, No. 06-4215, 2009 WL 2605283 (N.D. Ill. Aug. 25, 2009)