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Open, Undeleted E-mails Not Protected by Stored Communications Act



By Lee Williams

Personal information on company devices
The case involved a former cell phone company employee and her supervisor.  When the former employee left her job at the cell phone company, she was required to return the company issued smartphone she had used during her employment.  The employee had enabled access to a personal e-mail account on the smartphone.  Before returning the phone, the employee attempted to delete her personal e-mail account from the phone.  Although the employee believed she had successfully deleted access to the account, she was mistaken.  After the former employee returned the smartphone, her supervisor read approximately 48,000 personal e-mails from the account over a period of approximately 18 months without the employee’s authorization or consent.  When the former employee found out, she sued the supervisor and cell phone company for violating the SCA.

Open, undeleted e-mails not covered
The trial court first determined the supervisor did not have authorization or consent of the former employee to access her personal e-mails through the smartphone.  Next, the trial court considered whether all of the content in the personal e-mail account qualified as “electronic storage” under the SCA’s definition of the term.  The SCA defines “electronic storage” as either “any temporary, intermediate storage of a wire or electronic communication incidental to the transmission thereof,” or “any storage of such communication by an electronic communication service for purposes of backup protection of such communication.”

The trial court ruled in favor of the cell phone company and the supervisor on the employee’s request for damages as to open, undeleted e-mails on the personal account.  Because the e-mails had yet to be opened and/or archived, the trial court was unwilling to classify the information in those e-mails as “electronic storage” or “backup” materials.

This view, according to the trial court, represents the growing majority view across the country.  The Ninth Circuit Court of Appeals had previously ruled open, undeleted e-mails constituted “backup” storage under the SCA.  Although the Sixth Circuit has not expressly ruled on this issue to date, a prior opinion of the Sixth Circuit already requires a warrant for production of any electronically stored communications.  Based on that Sixth Circuit ruling, the trial court reasoned it was highly unlikely the Sixth Circuit would follow the Ninth Circuit’s reasoning in the future.

Danger for service providers
Internet service providers should pay close attention to further developments on this issue.  With the current state of the law largely in flux, the responsibilities of providers are not always clearly defined and could vary based on geographic location.  The growing split between the nation’s federal courts has increased calls for reform of the SCA.



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