[x-pubpol] Reading someone's Gmail doesn't violate federal statute, court finds

Fri Oct 12 05:36:53 PDT 2012

http://arstechnica.com/tech-policy/2012/10/reading-someones-gmail-doesnt-violate-federal-statute-court-finds/?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed:+arstechnica/index+(Ars+Technica+-+All+content)

by Cyrus Farivar -

In a case decided on Wednesday, the South Carolina Supreme Court
ruled<http://www.volokh.com/2012/10/10/sourth-carolina-supreme-court-deepens-split-on-privacy-in-stored-e-mails-and-divides-2-2-1-on-the-rationale/?ModPagespeed=noscript>
that
accessing someone’s online e-mail without their permission doesn’t violate
the 1986-era Stored Communications Act (SCA). Though they differed in their
reasoning, the justices were unanimous in ruling that e-mail stored in the
cloud (like Gmail or Yahoo Mail) does not meet the definition of electronic
storage as written in the statute.

This new decision creates a split with existing case law (*Theofel v.
Farey-Jones<http://ftp.resource.org/courts.gov/c/F3/359/359.F3d.1066.02-15742.03-15301.html>
*) as decided in a 2004 case decided by the Ninth Circuit Court of Appeals.
That decision found that an e-mail message that was received, read, and
left on a server (rather than being deleted) did constitute storage "for
purposes of backup protection," and therefore, was also defined as being
kept in "electronic storage."

Legal scholars point this judicial split as to yet another reason why the
Supreme Court (and/or Congress) should take up the issue of the Stored
Communications Act.

"This [South Carolina] decision is more evidence of how intractable and
inconsistent our statutory electronic surveillance regime has become,"
Woodrow Hertzog, a professor at the Cumberland School of Law at Samford
University, told Ars.

"All of the discussions regarding backups, temporary copies, and the
read/unread distinction seem to have very little to do with the way that
most people perceive their use of e-mail. Ultimately, this problem is
likely best resolved by the legislature, but the specifics of a politically
palatable update to the SCA have yet to be fully agreed upon."

Hertzog pointed out though, that in a case like this, that there could
still be federal liability under theComputer Fraud and Abuse
Act<https://en.wikipedia.org/wiki/Computer_Fraud_and_Abuse_Act>
.

Under the SCA, cops can go after anyone’s e-mail so long as its deemed to
be "relevant to an
investigation<http://www.onthemedia.org/2010/apr/23/ill-be-watching-you/transcript/>,"
which is a low legal threshold. The logic, at the time, was that prior to
webmail with large amounts of online storage, everyone had to download
their e-mail—so, if you hadn’t bothered to actually download your e-mail,
it was deemed to have been effectively abandoned.
A tale of love, gone awry

The case here, known as *Jennings v.
Jennings<http://www.judicial.state.sc.us/opinions/HTMLFiles/SC/27177.pdf>
* (PDF), involves around a woman (Gail Jennings), who suspected her husband
(Lee Jennings) of cheating on her. The wife’s daughter-in-law (Holly
Broome) managed to access Lee’s e-mail by correctly guessing his security
questions, and got ahold of messages between him and his paramour. Broome
shared those messages with Gail’s divorce attorney, and her private
investigator that she had hired for the purpose of advancing her own
divorce case.

Lee Jennings sued his wife, her attorney, and her investigator, under
several laws including the Stored Communications Act, which only allows for
a civil suit if the e-mails that were accessed without authorization were
in "electronic storage."

The district court granted summary judgment in favor of the defendants on
all claims—a decision that was then overturned on appeal. The Supreme Court
of South Carolina has now reversed that decision, albeit for varying
reasons.
What exactly is "electronic storage" ?

The United States Code <http://www.law.cornell.edu/uscode/text/18/2510> defines
"electronic storage" under the SCA 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."

Because the definition of "electronic storage" has two components, the
storage clause (A), and a purpose clause (B), Justices Hearn and Kittredge
found that because Jennings had no other copies of his e-mail (they only
existed through the Yahoo e-mail online interface), they could not have
possibly been a backup.

"We decline to hold that retaining an opened e-mail constitutes storing it
for backup protection under the Act," the two judges wrote.

"The ordinary meaning of the word ‘backup’ is ‘one that serves as a
substitute or support.’ 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. We see no reason to deviate from the plain,
everyday meaning of the word "backup," and conclude that as the single copy
of the communication, Jennings' e-mails could not have been stored for
backup protection.”

Chief Justice Jean Hoefer
Toal<http://www.judicial.state.sc.us/supreme/displayJustice.cfm?judgeID=1118>,
with Justice Donald
Beatty<http://www.judicial.state.sc.us/supreme/displayJustice.cfm?judgeID=1134>
concurring,
ruled that the e-mails here are not a backup, because they were not created
by the ISP for the purpose of actually creating a duplicate file.

"In my view, electronic storage refers only to temporary storage, made in
the course of transmission, by an ECS provider, and to backups of such
intermediate communications," Justice Toal wrote. "Under this
interpretation, if an e-mail has been received by a recipient's service
provider but has not yet been opened by the recipient, it is in electronic
storage."

The fifth justice, Costa
Pleicones<http://www.judicial.state.sc.us/supreme/displayJustice.cfm?judgeID=1127>,
agreed in his opinion. However, he articulated a distinct definition
between the relationships of the two clauses in question here.

"I view these two types of storage as necessarily distinct from one
another: one is temporary and incidental to transmission; the other is a
secondary copy created for backup purposes by the service provider," he
wrote.

"Therefore, an e-mail is protected if it falls under the definition of
either subsection (A) or (B). It does not end the inquiry to find that the
e- mails at issue were not in temporary storage during the course of
transmission (subsection (A)). Accordingly, because the e-mails in this
case were also not copies made by Jennings’s service provider for purposes
of backup (subsection (B)), they were not protected by the SCA. I therefore
concur in result."
No clear judicial standard

While this case deals with a fairly narrow subsection of the SCA—what
constitutes electronic storage—it’s yet another example that the Stored
Communications Act needs more judicial review at the very least, and
possibly an entire overhaul.

"This is an issue that really calls out for U.S. Supreme Court review,"
writes<http://www.volokh.com/2012/10/10/sourth-carolina-supreme-court-deepens-split-on-privacy-in-stored-e-mails-and-divides-2-2-1-on-the-rationale/?ModPagespeed=noscript>
Orin
Kerr, a privacy expert and professor of law at George Washington University.

"Internet providers often have a national customer base. A provider in one
state or circuit can have millions of customers in any other state or
circuit. Given the national customer base, any disagreement among lower
courts causes major headaches: ISPs don’t know which rule to follow. Making
matters even more worrisome, it’s not at all clear whether the legal
standard should be based on where the litigation arises or where the ISP is
located. United States v. Weaver, 636 F. Supp. 2d 768 (C.D. Ill. 2009),
nicely raised the problem: If the rights concerning records held by an ISP
in California are litigated in Illinois, Weaver held, the Illinois court is
not bound by the interpretation of the Ninth Circuit. Under that approach,
the privacy protection varies based on where the litigation arises, which
can be almost anywhere. That kind of dynamic creates a strong need for a
uniform reading of the statute."

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