South Carolina Jennings Decision Deepens Divide Over Scope Of Stored Communications Act

In a decision with potentially important privacy and law enforcement implications, the South Carolina Supreme Court held last week that emails that have already been opened by the recipient, but have not been deleted from the recipient's email account, are not in "electronic storage" for purposes of the federal Stored Communications Act ("SCA") and thus may be accessed by unauthorized third parties without violating the SCA.1 The South Carolina Supreme Court's decision conflicts with decisions by a number of federal courts and increases the likelihood that the U.S. Supreme Court will resolve the question, which has implications both for criminal investigations and for the many kinds of civil suits in which access to, and disclosure of, the contents of emails and other electronic communications are contested.

Background

Plaintiff Jennings confessed to his wife that he had been involved in an extra-marital affair. His wife mentioned the confession to her daughter-in-law, and the daughter-in-law hacked into Jennings' Yahoo! email account. The daughter-in-law read emails between Jennings and his lover, printed out the emails, and gave them to the wife's attorney and her private investigator. Jennings filed suit against his wife, the attorney, and the daughter-in-law under a variety of state tort theories, and later amended the complaint to include a claim that the defendants had violated the SCA. Under the SCA, an individual can be sued for "intentionally access[ing] without authorization" or "intentionally exceed[ing] an authorization to access" a "facility through which an electronic communication service is provided," when the individual "thereby obtains . . . access to a wire or electronic communication while it is in electronic storage in such system." 18 U.S.C. §§ 2701(a), 2707. "Electronic storage," for these purposes, 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." Id. § 2510(17). The state trial court granted the defendants' motion for summary judgment on all claims. The court of appeals reversed on the SCA claim as to the hacker, holding that the emails at issue were in "electronic storage" as defined in the SCA because they were for "purposes of backup protection."

South Carolina Supreme Court's...