Jul 172010
 July 17, 2010  Posted by  Breaches, Court, Featured News, Online

Jeff Gorman reports:

A woman who hacked into a man’s e-mail account to expose his extramarital affair may have violated federal law, the South Carolina Court of Appeals ruled.

Gail Jennings found a card for flowers in her car and correctly suspected that the flowers were not for her. Her husband, Lee Jennings, admitted to having fallen in love with another woman, whom he would not identify.

Gail’s daughter-in-law, Holly Broome, used to work for Lee, so she went into his Yahoo e-mail account by changing his password. Broome read e-mails between Lee and his girlfriend, and printed copies for Gail’s divorce attorney and the private detective Gail had hired.

Lee found out about the e-mail breach during the divorce proceedings. He sued Gail, Broome, Gail’s attorney and the detective.

The trial court ruled in Gail’s favor, stating that Lee did not prove the e-mails were in electronic storage, and that the defendants did not violate the Stored Communications Act (SCA).

On appeal, Judge John Geathers reversed the decision and ruled that Lee had presented enough evidence to bring the case to trial.

Read more on Courthouse News. A copy of the court’s opinion can be found here (pdf). From the opinion:

Wife, however, contends that Yahoo was acting as a “remote computing service” (RCS), rather than an ECS, at the time that the emails were accessed. RCS is defined as “the provision to the public of computer storage or processing services by means of an electronic communications system.” 18 U.S.C. § 2711(2) (2006).[6] The term refers to “the processing or storage of data by an off-site third party.” Quon, 529 F.3d at 901; see also Orin S. Kerr, A User’s Guide to the Stored Communications Act, and a Legislator’s Guide to Amending It, 72 Geo. Wash. L. Rev. 1208, 1213-14 (2004) (describing customers of RCS as those that “paid to have remote computers store extra files or process large amounts of data”).

In the present case, it is questionable whether Yahoo was providing RCS with respect to the emails in question. For instance, in Quon, the Ninth Circuit held that Arch Wireless, a company providing text messaging services to the city of Ontario, was not an RCS and that Arch Wireless therefore violated the SCA when it disclosed to the city the contents of text messages sent by city employees. Quon, 529 F.3d at 900-03.[7] Nonetheless, even if Yahoo was acting as an RCS with respect to the emails at issue, there is no question that Yahoo was also acting as an ECS with regard to those same emails. Husband’s account was still active, and Husband retained the ability to send (forward) any of the emails at issue to someone else. Notably, the House Report for the SCA indicates that, in such situations, the communications would still be protected under section 2701. See H.R. Rep. No. 99-647, at 63 (1986) (“[T]o the extent that a remote computing service is provided through an Electric Communication Service, then such service is also protected [under section 2701].”).

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