On October 10, 2012, the South Carolina Supreme Court handed down its ruling in Jennings v. Jennings. The court was faced with the challenge of interpreting a somewhat ambiguous provision in the Stored Communications Act (the “SCA”) – a federal law enacted in the late 1980s. The court’s opinion did little to help clarify the existing (and conflicting) interpretations of the SCA.
The Background of the Jennings Case
The Jennings case arose out of a domestic dispute in which a husband’s Yahoo webmail account was accessed without the husband’s consent.
After learning of the unauthorized email access, the husband filed suit alleging violations of various South Carolina laws and the SCA. While the state law claims were dismissed by lower courts, the South Carolina Supreme Court was left to decide whether the unauthorized webmail access constituted a violation of the SCA. The court – in a plurality opinion – concluded that the alleged unauthorized access of the webmail account was not a violation of the SCA.
SCA Definition of Electronic Storage
The SCA is a federal criminal statute which criminalizes unauthorized accessing of emails that are in “electronic storage”. Private parties damaged by violations of the SCA can bring civil claims.
For purposes of the SCA, 12 U.S.C. §2510(17) defines “electronic storage” as:
“(A) any temporary, intermediate storage of a[n] . . . electronic communication incident to the electronic transmission thereof; and
(B) any storage of such communication by an electronic communication service [e.g., Yahoo! Mail, Microsoft Hotmail or Google Gmail] for purposes of backup protection of such communication.”
While all five of the South Carolina Supreme Court justices agreed that the emails in question were not in “electronic storage”, there were three different opinions issued by the court and each contained a different rationale.
Justice Hearn’s Opinion
Justice Hearn, joined by Justice Kittredge, noted in her opinion that in order for something to meet the statutory test for “electronic storage” it simply had to meet either the requirement of §2510(17)(A) or §2510(17)(B) — notwithstanding word “and” joining the two statutory provisions.
Focusing on §2510(17)(B), Justice Hearn concluded that in order for there to be email storage for backup purposes there must be at least two copies of an email in existence (and at least one copy must be left on the service provider’s system for “backup”). Since there was no evidence that Jennings had ever copied or downloaded the emails from Yahoo’s servers prior to the unauthorized access, it appeared that the only emails in existence were the original emails on Yahoo’s servers – thus they were not stored on Yahoo’s system for “backup purposes”.
Chief Justice Toal’s Opinion
Chief Justice Toal (joined by Justice Beatty) concurred with Justice Hearn’s result but not her reasoning. Chief Justice Toal believed that for an email to be in “electronic storage” it must meet the tests of both §2510(17)(A) and §2510(17)(B). In her view, “electronic storage refers only to temporary storage made in the course of transmission, by an [email service provider like Yahoo], and to backups of such intermediate communications.” Basically, if the email remains unopened on the email provider’s servers, it is in electronic storage – but once the recipient opens the email it ceases to be in electronic storage.
Justice Pleicones’ Opinion
Justice Pleicones, like Justice Hearn, concluded that §2510(17)(A) and §2510(17)(B) are independent tests for determining electronic storage. However, Justice Pleicones’ opinion concluded that under §2510(17)(B) the key issue was whether the emails were copies made by the email service provider for backup purposes. Since there was no evidence Yahoo had retained the accessed emails for backup purposes, the emails were not in “electronic storage” and therefore not protected by the SCA.
What Does It Mean?
The Jennings case adds to the existing confusion regarding the reach of the Stored Communication Act. Indeed, its result is very different from the result reached in the Ninth Circuit’s widely cited Theofel v. Farey-Jones decision.
Given the inconsistent court rulings across the United States, there will be a great incentive for plaintiffs seeking to take advantage of the SCA to find the jurisdiction that will be most favorable to their cause of action. Internet and email service providers will also be forced to deal with continued uncertainly regarding the application and interpretation of the SCA across the Federal and state court systems.
