The Fourth Circuit released its opinion this morning in Van Alstyne v. Electronic Scriptorium, No. 07-1892 (4th Cir. March 18, 2009). Nutshell: Plaintiffs who sue for violations of the Stored Communications Act, 18 U.S.C. 2707(a), must prove actual damages in order to qualify for the $1,000 per violation statutory damages provided by the act. Ouch!

In a case involving an employer's intrusion into an employee's personal e-mail account, the court said that the pertinent language in the SCA ("actual damages suffered") was substantially similar to language in the Privacy Act, 5 U.S.C. 522a(g)(4)(A)("actual damages sustained"). The U.S. Supreme Court has already ruled, in Doe v. Chao, 540 U.S. 614 (2004), that statutory damages are not available under the Privacy Act without proof of actual damages. Ditto for the SCA, the Fourth Circuit decided.

Several courts have previously held that a showing of actual damages is not required to entitled plaintiffs to statutory damages under the SCA. But the Fourth Circuit made short work of these rulings, stating that they were at odds with the teaching of Doe v. Chao.

Thomas O'Toole

Thomas O'Toole joined BNA in 1988 and has been managing editor of Bloomberg BNA's Electronic Commerce & Law Report since its founding in 1996. He has a BA in Economics and English Literature from the University of Michigan and a JD from Wayne State University Law School. You can contact him at Follow him at @tjotoole on Twitter for blog updates and internet law news.

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