Last month, the Supreme Court of South Carolina ruled that the Stored Communications Act (“SCA”) did not protect e-mails contained in a user’s webmail account. Jennings v. Jennings, No. 27177 2012 WL 4808545 (S.C. Oct. 10, 2012). The e-mail user sued his wife and her relative for violating the SCA by accessing his Yahoo! account to obtain e-mails he exchanged with another woman.
The SCA was enacted in 1986 as part of the Electronic Communications Privacy Act and provides protection to electronic communication service providers and users by limiting when the government can compel disclosure of certain communications, limiting when service providers can voluntarily disclose information, and providing a cause of action against a person that intentionally obtains an “electronic communication while in electronic storage” without authorization. 18 U.S.C. § 2701(a)(2) (2000). Due to outdated definitions, the SCA affords little protection to internet communications exchanged today.
An electronic communication service is a service providing “electronic storage,” which is defined 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 purposes of backup protection of such communication.” 18 U.S.C. § 2510(17) (2000). This definition of electronic storage tracked the way e-mail was used at the time the SCA was enacted; mail was temporarily copied and stored before being downloaded to the recipient’s computer. Today, webmail services allow the user to access mail on the web through any computer rather than require the user to download the mail onto their personal computer, which raises the question of whether webmail is ever in temporary intermediate storage or stored solely for backup protection.
The Department of Justice (“DOJ”) has adopted a narrow interpretation of “electronic storage.” According to the DOJ, a communication is not electronic storage under §2510(17)(A) unless it is stored in the course of transmission, and communications stored as backup protection under § 2510(17)(B) are those that are stored by the service provider as a backup copy prior to delivery to the recipient. CCIPS, U.S. Dep’t of Justice, Searching and Seizing Computers and Obtaining Electronic Evidence in Criminal Investigations, 123 (3d ed. 2009). Conversely, in Theofel v. Farey-Jones, the Ninth Circuit found that e-mail read by the recipient but still available on the server was stored for the purpose of “backup protection” and thus protected by the SCA under § 2510(17)(B). 359 F.3d 1066 (9th Cir. 2004).
In Jennings, a lower court relied on Theofel in determining that the e-mails were in electronic storage “for purposes of backup protection.” The Supreme Court reversed, holding that the “passive inaction” involved in opening e-mail and leaving the single copy on the server cannot constitute storage for backup protection. Based on this holding, it is unclear whether any web-based e-mail communication would be protected under the SCA. Although the question of whether the e-mail could be protected under §2510(A) (“temporary intermediate storage of a wire or electronic communication”) was not raised in Jennings, it is unlikely that any opened e-mail could be said to be “intermediate storage.” The SCA’s outdated definitions are difficult to apply to electronic communications as they are used today and therefore do not adequately protect web-based communications.