Jan 102013
 January 10, 2013  Posted by  Breaches, Court, Featured News

What do you mean by e-mail being “in electronic storage” and what do you mean by “for backup protection?” Will SCOTUS agree to hear a case on the Stored Communications Act?

Back in 2010, I noted a ruling by the South Carolina Court of Appeals in Jennings v. Jennings,. In that case, Holly Broome, Gail Jenning’s daughter-in-law, had accessed Lee Jenning’s Yahoo e-mail account by changing his password. Broome then read and printed copies of the e-mails between Lee Jennings and his girlfriend. The printed copies were given to the wife’s attorney and private investigator involved in the Jennings’ divorce action.

When the husband discovered what Holly Broome had done, he sued her, his wife, his wife’s attorney, and the private investigator, alleging, in part, violations of Section 2701 of the Stored Communications Act.

The trial court granted summary judgement to the defendants, but the appeals court reversed and remanded, in part, agreeing with the husband’s argument that the case against Broome should be allowed to go to trial. The court affirmed the lower court’s ruling dismissing the claims against the wife and others, however.  But in October 2012, the Supreme Court of South Carolina reversed the appellate court’s ruling as to whether Broome’s actions might constitute a violation of the SCA. The court held that the e-mails were not “in electronic storage,” and that the prong about “for backup protection” had not been met:

After opening them, Jennings left the single copies of his e-mails on the Yahoo! server and apparently did not download them or save another copy of them in any other location. We decline to hold that retaining an opened e-mail constitutes storing it for backup protection under the Act. The ordinary meaning of the word “backup” is “one that serves as a substitute or support.” Merriam-Webster Dictionary, http://www.merriamwebster.com/dictionary/backup. Thus, Congress’s use of “backup” necessarily presupposes the existence of another copy to which this e-mail would serve as a substitute or support. We see no reason to deviate from the plain, everyday meaning of the word “backup,” and conclude that as the single copy of the communication, Jennings’ e-mails could not have been stored for backup protection.

Accordingly, we find these e-mails were not in electronic storage. We emphasize that although we reject the contention that Broome’s actions give rise to a claim under the SCA, this should in no way be read as condoning her behavior. Instead, we only hold that she is not liable under the SCA because the e-mails in question do not meet the definition of “electronic storage” under the Act.

As Cyrus Farivar reported at the time:

In a case decided on Wednesday, the South Carolina Supreme Court ruled that accessing someone’s online e-mail without their permission doesn’t violate the 1986-era Stored Communications Act (SCA). Though they differed in their reasoning, the justices were unanimous in ruling that e-mail stored in the cloud (like Gmail or Yahoo Mail) does not meet the definition of electronic storage as written in the statute.

This new decision creates a split with existing case law (Theofel v. Farey-Jones) as decided in a 2004 case decided by the Ninth Circuit Court of Appeals. That decision found that an e-mail message that was received, read, and left on a server (rather than being deleted) did constitute storage “for purposes of backup protection,” and therefore was also defined as being kept in “electronic storage.”

Legal scholars point to this judicial split as yet another reason why the Supreme Court (and/or Congress) should take up the issue of the Stored Communications Act.

Now SCOTUS has been given an opportunity to do so. Lee Jennings filed  Petition for a writ of certiorari on Monday.

On the one hand, I hope SCOTUS grants cert. But by the same token, I think this case reinforces the need for Congress to update ECPA and strengthen the protections.

So will SCOTUS do what Congress has failed to do – recognize that people’s lives reside on e-mail servers in the cloud and that the public wants our e-mails treated with the highest privacy protections? Or will they agree with South Carolina and hold that leaving e-mails on Gmail or Yahoo without downloading it means that it is not in storage for backup protection under the SCA?  Or will they deny cert and leave us with conflicting opinions across circuits?

 h/t, Ryan Mrazik

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