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Wednesday, October 10, 2012
by Thomas O'Toole
The South Carolina Supreme Court held today that opened email messages on a web-based email service provider are not protected by the federal Stored Communications Act, 18 U.S.C. §§ 2701-12.
The facts of the case involved a Yahoo! email account, though the court's reasoning applies to any similar service such as Gmail or Hotmail.
The Stored Communications Act provides a civil cause of action against anyone who accesses an electronic communication service without authorization and " ... obtains ... access to a wire or electronic communication while it is in electronic storage in such system."
Looks like this might cover a situation like the one before the court, in which one man's betrothed hacked into his Yahoo! account and discovered previously read communications between the man and another woman. Unfortunately for this individual, the answer turns out to be "no."
In 18 U.S.C. § 2510(17), the SCA defines "electronic storage" as "(A) any temporary, intermediate storage of a wire or electronic communication incidental to the electronic transmission thereof; and (B) any storage of such communication by an electronic communication service for the purposes of backup protection of such communication."
To make a long story short, the court held that the opened email messages were not made "for the purposes of backup protection" under Section 2510(17)(B) so the SCA did not provide a cause of action for the Yahoo! account owner in this case.
The case produced three separate opinions from the five-member court, with only two justices signing on to the reasoning of the lead opinion. The two additional opinions were concurrences; meaning that no member of this court would have held that opened email messages on a web-based service are protected by the SCA. (The lead opinion considered, and rejected, the Ninth Circuit's reasoning in Theofel v. Farey-Jones, 359 F.3d 1066, 1075 (9th Cir. 2004), where the court held that opened email messages on a web-based service are protected by the SCA.)
Right or wrong, this court's opinion is further evidence that the basic legal framework for electronic communications privacy in the United States -- last amended in 1986 -- is sorely in need of attention. Not only could a majority of this court not agree on what the Stored Communications Act means, the result reached by the court is significantly at odds with most individuals' gut-level understanding of their privacy rights in electronic communications.
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