By: Jeffrey Lapin
On October 10, 2012, the Supreme Court of South Carolina, in Jennings v. Jennings, held that it is not a violation of the Stored Communications Act (SCA), 18 U.S.C. §§ 2701-12, to read someone's cloud based email, such as Yahoo! mail or Gmail, without their permission.
The SCA prohibits the unauthorized accessing of an electronic communication while it is in "electronic storage." Another statute, 18 U.S.C. 2510(17), which is used by 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 purposes of backup protection of such communication.
The South Carolina Supreme Court court unanimously ruled that Yahoo! mail does not fall within the SCA's definition of electronic storage and does not offer protection if the user's email is read without permission.
This South Carolina decision differs from a case decided by the 9th Circuit Court of Appeals in Theofel v. Farey-Jones in 2004. In that case, the court held that a user's email that had been read and left on his ISP's (Internet Service Provider) server was protected by the SCA.
While there are differences between these two cases, ISP and cloud based messaging, it does show how technology has changed since the SCA was originally passed into law on October 21, 1986, and that the law has not caught up to technology. Unless Congress decides to make significant changes to the SCA and other provisions of the Electronic Communications Privacy Act of 1986 (ECPA), ultimately, the United States Supreme Court may be called upon to decide how these Acts apply to current technology, which was not even contemplated when some of these laws were enacted.
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