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Email Left On Server Is Not Back-up Copy Under The Stored Communications Act

The South Carolina Supreme Court ruled that a hacker who, without authority, accessed and downloaded email left on a Yahoo email server, did not violate the federal Stored Communications Act (SCA), 18 U.S.C. §§ 2701-2712, because the Yahoo server copy was not a backup copy for the email.  Jennings v. Jennings, Case No. 27177 (S.Car. Oct. 10, 2012)(available here).  This state court decision, construing federal law, again highlights the point that criminal statutes, overlaid with civil remedies, provide uncertain relief to an injured party.

Wife Gail Jennings suspected that her Husband Lee Jennings was having an affair with another women.  The Wife shared her fear with her daughter-in-law, Holly Broome. Broome had previously worked for the Husband and knew he maintained a personal Yahoo! e-mail account. Broome then “accessed his account by guessing the correct answers to his security questions and read the e-mails exchanged between [Husband] Jennings and his paramour. Broome then printed out copies of the incriminating emails and gave them to Thomas Neal, [Wife] Gail’s attorney in the divorce proceedings, and Brenda Cooke, a private investigator Gail hired.”

The Husband sued the group, including his Wife and Broome, for invasion of privacy, conspiracy, and violations of the South Carolina Homeland Security Act, South Carolina Code Ann.§ 17-30-135 (2010). He later amended his complaint to include an allegation that the defendants violated the SCA.

Under the SCA, 18 U.S.C. § 2701(a), anyone who:
( 1) intentionally accesses without authorization a facility through which an electronic communication service is provided; or
(2) intentionally exceeds an authorization to access that facility;
and thereby obtains, alters, or prevents authorized access to a wire or electronic communication while it is in electronic storage in such system shall be punished as provided in subsection (b) of this section.

This section proscribes the unauthorized accessing of an electronic communication while it is in “electronic storage.” 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.” 18 U.S.C. § 2510(17). For the Husband to succeed in his claim against Broome under the SCA, “he must prove the e-mails she accessed were in electronic storage as defined in section 2510(17).”

The Husband only argued that subsection (B) of the “electronic storage” definition applied – he never argued that the e-mails in questions were in electronic storage pursuant to subsection (A).

A majority of courts have held that an e-mail can be in electronic storage if it meets either (A) or (B). See, e.g., Theofel v. Farey-Jones, 359 F.3d 1066, 1075 (9th Cir. 2004); Fraser v. Nationwide Mut. Ins. Co., 352 F.3d 107, 114 (3d Cir. 2003), affg in part, vacating in part, and remanding 135 F. Supp. 2d 623 (E.D. Pa. 2001); Strategic Wealth Group, LLC v. Canno, No. 10-0321, 2011 WL 346592, at *3-4 (E.D. Pa. Feb. 4, 2011); Cornerstone Consultants, Inc. v. Prod. Input Solutions, LLC, 789 F. Supp. 2d 1029, 1055 (N.D. Iowa 2011); Shefts v. Petrakis, No. 10-cv-1104, 2011 WL 5930469, at *5 (C.D. Ill. Nov. 29, 2011); Crispin v. Christian Audigier, Inc., 717 F. Supp. 2d 965, 983 (C.D. Cal. 2010); U.S. v. Weaver, 636 F. Supp. 2d 768, 771 (C.D. Ill. 2009); Flagg v. City of Detroit, 252 F.R.D. 346,362 (E.D. Mich. 2008).

The court in Theofel held that ICA’s e-mails which had been received and read, and then left on the server instead of being deleted, could be characterized as being stored “for purposes of backup protection” and therefore kept in electronic storage under subsection (B). Id. at 1075.

In the Jennings case, the Husband opened the emails but “left single copies of the e-mails on the Yahoo! server and apparently did not download them or save another copy of them in any other location.”

The South Carolina court stated: “We decline to hold that retaining an opened email constitutes storing it for backup protection under the Act. The ordinary meaning of the word ‘backup’ is ‘one that serves as a substitute or support.’ Merriam-Webster Dictionary, http://www.merriamwebster. com/dictionary/backup. Thus, Congress’s use of ‘backup’ necessarily presupposes the existence of another copy to which this e-mail would serve as a substitute or support.”

Commentary: In this modern age of electronic communication, opening an email for reading and then leaving the email on the email server seems to fall within the “substitute” or “support” definition of a “back-up.”  Leaving the previously viewed and opened email on the server also operates “for the purposes of backup protection of such communication” per the SCA.  18 U.S.C. § 2510(17)(B).  Once opened, the email communication is transmitted to the recipient.  The Court’s opinion indicates that the transmission of the opened email to the recipient was not a “download.”  Leaving the previously opened email on the server, and not deleting it, causes the saved email to be a substitute of the original, unopened email.  The “opened but otherwise unaltered email” communication is electronically altered by the email service to indicate that it was delivered or otherwise opened by the recipient.  Therefore, the saved email, which indicates that it was opened, is a back-up substitute of the original communication.

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