Supreme Court Declines to Revisit Ruling That Opened Email Beyond Scope of SCA

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The U.S. Supreme Court let stand April 15 a ruling that opened emails stored on Yahoo!'s internet-based email system are not stored for purposes of “backup protection” and thus fall outside the reach of the Stored Communications Act (Jennings v. Broome , U.S. No. 12-831, cert. denied 4/15/13).

In the case below, the South Carolina Supreme Court concluded that opened web mail stored on Yahoo! servers, and nowhere else, is not stored for “backup protection” and thus falls outside the protections of the SCA, 18 U.S.C. § 2501 (11 PVLR 1528, 10/15/12).

The SCA, at Section 2701(a), provides that whoever intentionally accesses without authorization a facility through which an electronic communication service is provided and thereby obtains, alters, or prevents authorized access to an electronic communication while it is in electronic storage shall be punished. Because these messages were not in electronic storage, the defendant could not be held liable under the SCA.

The dispute arose in the context of a domestic dispute, in which an individual logged into the plaintiff's account by guessing the answers to his security questions and obtained communications between the plaintiff and a mistress. The plaintiff's estranged wife provided the messages to her attorney, and the plaintiff sued the individual, the wife, and the attorney, alleging SCA violations and other wrongs.

Challenges in Applying SCA

The majority opinion of the South Carolina Supreme Court illustrated the challenges courts have had when interpreting the SCA's protection for electronic communications in “electronic storage.”

The three concurring justices agreed with the majority that opened Yahoo! emails are not held in “electronic storage.”

The majority questioned the Ninth Circuit's reasoning in Theofel v. Farey-Jones, 359 F.3d 1066 (9th Cir. 2004) (3 PVLR 247, 3/1/04). Theofel held that opened messages stored on a server were for purposes of “backup protection,” and thus in “electronic storage,” because the account holder could have deleted them but retained them instead.

The South Carolina Supreme Court sidestepped Theofel without rejecting its reasoning outright. In order for a message to be a “backup,” there must be another copy, this court held.

Senate ECPA Markup Expected Soon

Sen. Patrick J. Leahy (D-Vt.) announced April 15 that the Senate Judiciary Committee will soon begin considering modifications to the related Electronic Communications Privacy Act, to address unwarranted intrusions into private electronic communications.

Leahy March 19 introduced a bill (S. 607), that would eliminate the statute's treatment of electronic communications services and remote computing services, for purposes of the statute's warrant requirement for obtaining electronic communications (12 PVLR 509, 3/25/13).

The proposal would not alter or clarify the definitions of communications in “electronic storage.”

Full text of the South Carolina Supreme Court's ruling is available at