Concerning the Scope of Protections for Stored E-mail Under the Electronic Communications Privacy Act
Whether e-mails stored by an e-mail provider after delivery are in “electronic storage” under the Stored Communications Act
This case involves unauthorized access to an e-mail account arising from a domestic dispute. After Mr. Jennings confessed that he “had fallen in love with someone else,” and “admitted the two had been corresponding via e-mail for some time,” his wife’s daughter-in-law, Holly Broome, gained access to his Yahoo! e-mail account by answering his security questions to obtain his password. When Mr. Jennings discovered that Ms. Broom had accessed his e-mails and shared them with his wife, her attorney, and a private investigator, he brought suit in South Carolina state court. All claims were dismissed by the trial court, but the court of appeals ruled that Mr. Jennings could state a claim against Ms. Broome under the Stored Communications Act, 18 U.S.C. §§ 2701-12, because the e-mails were in “electronic storage” as defined in § 2710(15).
The Supreme Court of South Carolina granted certiorari, and reversed the judgment of the court of appeals. However, the five justices of the South Carolina court did not agree on the proper interpretation of “electronic storage” under the Electronic Communications Privacy Act. The justices wrote three separate opinions, which can be summarized as follows:
Justice Hearn’s Opinion of the Court (Joined by Justice Kittredge)
Justice Hearn’s opinion found that the definition of “electronic storage” did not cover the e-mails at issue in this case because they were not stored “for the purposes of backup protection.” This opinion relies on the “ordinary” definition of the term “backup” – “one that serves as a substitute or support” – and the fact that Mr. Jennings did not make a second copy of his e-mail. As a result, Justice Hearn held that his e-mail could not have been a “backup” and thus was not protected by ECPA.
Chief Justice Toal’s Concurring Opinion (Joined by Justice Beatty)
Chief Justice Toal’s opinion finds that there need not be a second copy in order for the e-mail storage to constitute “backup protection,” but that the definition of “electronic storage” only includes temporary, intermediate copies. As a result, Justice Toal found that when “a recipient opens the e-mail” it is no longer in “electronic storage” and thus no longer protected from unauthorized access.
Justice Pleicones’ Opinion
Justice Pliecones wrote a separate opinion concurring with Chief Justice Toal’s opinion, but specifying that the definition of “electronic storage” is disjunctive, rather than conjunctive, and includes either “(A) any temporary, intermediate storage of a wire or electronic communication incidental to the electronic transmission thereof,” or “(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)(A). Justice Pleicones found that the e-mails at issue in this case were not in “electronic storage” because they were not copies made by the service provider for backup protection.
All three of the South Carolina Justices’ opinions conflict with the Ninth Circuit’s view in Theofel v. Farey-Jones, 359 F.3d 1066 (9th Cir. 2004), that e-mails received and read, and then left on the server instead of being deleted, could be characterized as stored “for the purposes of backup protection” and therefore kept in electronic storage under subsection (B) of 18 U.S.C. § 2510(17). Id. at 1075.
The definition of “electronic storage” is used throughout the Stored Communications Act (“SCA”), and defines the scope of important privacy rights for e-mail users. The SCA prohibits unauthorized access to e-mail and other communications in “electronic storage.” See 18 U.S.C. § 2701. The SCA also regulates the voluntary disclosure by service providers of messages in “electronic storage.” See 18 U.S.C. § 2702. And finally, the SCA specifies the legal process the government must use to compel disclosure of messages in “electronic storage.” See 18 U.S.C. § 2703. The SCA specifies that government must obtain a warrant in order to access an e-mail that has been in “electronic storage” for 180 days or less. See id.
EPIC’s Interest in Jennings v. Jennings
The primary form of electronic communication is e-mail. Unlike at the time the Electronic Communications Privacy Act was passed in 1986, the majority of e-mail is now stored and accessible remotely in cloud-based services. Yet protecting the privacy of e-mail messages, as EPIC has noted in the past, is still one of the core purposes of ECPA. In United States v. Councilman, a case involving a criminal prosecution under the wiretap act for interception of e-mail, EPIC joined leading civil liberties organizations in an amicus brief authored by Professor Orin Kerr. EPIC argued that an e-mail can be simultaneously in “electronic storage” and subject to interception under the Wiretap Act. Several EPIC advisory board members who are technical experts and leading authorities on Internet architecture, e-mail communications, and computer privacy also filed an amicus brief in Councilman, arguing that “ECPA was intended to deal precisely with the improper capture of information by one party that is intended solely for delivery to other(s) . . . .” Senator Patrick Leahy, one of the authors of ECPA, also filed an amicus brief in the case arguing that the definition of “electronic storage” was “designed to distinguish the SCA from ordinary computer crime statutes covering unauthorized system access unrelated to the communications process,” and that the definition should not “cast doubt upon Title III’s protection of electronic communications” during the transmission phase.
EPIC also filed an amicus brief in Bunnell v. MPAA, a civil wiretap act case involving a question substantially similar to that in Councilman. EPIC’s brief argued that Congress added “electronic storage” to the definition of wire communications to expand protections for voicemail, not to lessen protections for stored e-mail.