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.
Follow this blogger on Twitter at @tjotoole.
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 firstname.lastname@example.org.
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 email@example.com.
Put me on standing order
Notify me when new releases are available (no standing order will be created)