Bloomberg Law: Privacy & Data Security brings you single-source access to the expertise of Bloomberg Law’s privacy and data security editorial team, contributing practitioners,...
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.
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.
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 http://pub.bna.com/eclr/sc27177.pdf.
All Bloomberg BNA treatises are available on standing order, which ensures you will always receive the most current edition of the book or supplement of the title you have ordered from Bloomberg BNA’s book division. As soon as a new supplement or edition is published (usually annually) for a title you’ve previously purchased and requested to be placed on standing order, we’ll ship it to you to review for 30 days without any obligation. During this period, you can either (a) honor the invoice and receive a 5% discount (in addition to any other discounts you may qualify for) off the then-current price of the update, plus shipping and handling or (b) return the book(s), in which case, your invoice will be cancelled upon receipt of the book(s). Call us for a prepaid UPS label for your return. It’s as simple and easy as that. Most importantly, standing orders mean you will never have to worry about the timeliness of the information you’re relying on. And, you may discontinue standing orders at any time by contacting us at 1.800.960.1220 or by sending an email to email@example.com.
Put me on standing order at a 5% discount off list price of all future updates, in addition to any other discounts I may quality for. (Returnable within 30 days.)
Notify me when updates are available (No standing order will be created).
This Bloomberg BNA report is available on standing order, which ensures you will all receive the latest edition. This report is updated annually and we will send you the latest edition once it has been published. By signing up for standing order you will never have to worry about the timeliness of the information you need. And, you may discontinue standing orders at any time by contacting us at 1.800.372.1033, option 5, or by sending us an email to firstname.lastname@example.org.
Put me on standing order
Notify me when new releases are available (no standing order will be created)