Overly literal reading of the Stored Communications Act causes South Carolina to split with Ninth Circuit on hacking

South Carolina’s highest court ruled this month that opened email stored on users’ email accounts is not protected under the Stored Communications Act (“SCA”). See Jennings v. Jennings, No. 27177, 2012 WL 4808545 (S.C. Oct. 12, 2012).

In connection with a divorce lawsuit, where the wife effectively hacked her husband’s email account, the husband brought claims for violation of the SCA. The case went all the way up to South Carolina’s Supreme Court which, diverging from the findings of previous federal cases on the issue (namely the Ninth Circuit’s Theofel v. Farey-Jones case), the SC court ruled that emails were not in “electronic storage” within the meaning of the act unless they were not (i) unopened, or (ii) in backup or archived.

The Court’s reasoning is based on an overly literal reading of the SCA which prohibits an individual from accessing an electronic communication while it is in “electronic storage,” 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 the purposes of backup protection of such communication.” 18 U.S.C. § 2510(17).

According to the SC Court, emails only fall under the protection of temporary or intermediate storage (as per A above) if they were unopened, and they only fall into the definition of backup storage (as per B above) if the user expressly labeled them as backup. Evidently opened emails which users choose to simply let “sit” in their mailboxes do not count as backups.

In my opinion (and I think in the opinion of the Ninth Circuit which got this one right), the above decision (1) ignores the practical reality of modern email technology, namely that when we leave emails in our mailboxes after we read them we very much intend them to function as backups (otherwise we would delete them); and (2) the decision simply reads the SCA in an overly literal manner so as to yield a silly outcome, namely that there is somehow a difference between opened and unopened electronic files.

Of course it is odd that a state court is interpreting a federal law, but this makes sense given that the case arose out of a divorce proceeding. It is ultimately unlikely that other federal courts will go with South Carolina on this over the Ninth Circuit’s interpretation of the SCA.