Leaving single copies of email on the server of one’s web-based email account (in this case Yahoo!) without downloading them or saving them to another location does not constitute storing the emails for backup protection under the Stored Communications Act (SCA), according to the South Carolina Supreme Court. Jennings v. Jennings, S.C. Sup. Ct. Oct. 12, 2012, No. 27177. This case arises out of civil litigation relating to a domestic dispute, but can affect how the SCA is applied in other contexts where a person’s or employee’s email account is accessed by an unauthorized third party. The case also highlights the difficulty courts have had with consistently applying this somewhat dated law to current technology.  

When the plaintiff’s spouse learned her husband was having an affair, she confided in her daughter-in-law who then gained access to the husband’s Yahoo! account which contained emails corroborating the affair. When these emails became part of the divorce proceedings, the husband sued and alleged, among other things, that his Yahoo! account had been illegally hacked under the SCA. The court of appeals found that the e-mails were in electronic storage, therefore triggering the SCA. The state’s Supreme Court disagreed. 

The SCA is violated when a person:

(1) intentionally accesses without authorization a facility through which an electronic communication service is provided; or

(2) intentionally exceeds an authorization to access that facility;

and thereby obtains, alters, or prevents authorized access to a wire or electronic communication while it is in electronic storage in such system shall be punished as provided in subsection (b) of this section.

18 USC 2701(a). However, the decision came down to the meaning of "electronic storage," defined in 18 USC 2510(17) to mean:

(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 Court acknowledged differing views on how this definition has been interpreted – noting that the Department of Justice prefers the interpretation that both (A) and (B) be established to constitute electronic storage, while a majority of courts have found only one of the two prongs needs to be met. Because the plaintiff only alleged storage under (B), the Court focused on when electronic communications are stored for purposes of backup protection.

In that connection, the Court noted that the plaintiff left single copies of his e-mails in his Yahoo! email account, without saving or downloading them elsewhere. Looking to a dictionary definition of "backup" – "one that serves as a substitute or support" – the Court held that use of a backup presupposes the existence of another copy. Since there was no other copy according to the Court, the plaintiff could not have been storing the email for backup protection and, therefore, the defendant could not have violated the SCA.  A concurring opinion by Judge Kittredge, however, suggests a more in-depth analysis.

This case make clear that businesses, attorneys and individuals need to proceed with caution when conducting investigations that involve electronic communications, a necessary source of information for just about any investigation. Something that may appear to be clearly in or not in "storage," may not hold true should the matter be analyzed by a court, or a state or federal agency.     

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Photo of Joseph J. Lazzarotti Joseph J. Lazzarotti

Joseph J. Lazzarotti is a principal in the Berkeley Heights, New Jersey, office of Jackson Lewis P.C. He founded and currently co-leads the firm’s Privacy, Data and Cybersecurity practice group, edits the firm’s Privacy Blog, and is a Certified Information Privacy Professional (CIPP)…

Joseph J. Lazzarotti is a principal in the Berkeley Heights, New Jersey, office of Jackson Lewis P.C. He founded and currently co-leads the firm’s Privacy, Data and Cybersecurity practice group, edits the firm’s Privacy Blog, and is a Certified Information Privacy Professional (CIPP) with the International Association of Privacy Professionals. Trained as an employee benefits lawyer, focused on compliance, Joe also is a member of the firm’s Employee Benefits practice group.

In short, his practice focuses on the matrix of laws governing the privacy, security, and management of data, as well as the impact and regulation of social media. He also counsels companies on compliance, fiduciary, taxation, and administrative matters with respect to employee benefit plans.

Privacy and cybersecurity experience – Joe counsels multinational, national and regional companies in all industries on the broad array of laws, regulations, best practices, and preventive safeguards. The following are examples of areas of focus in his practice:

  • Advising health care providers, business associates, and group health plan sponsors concerning HIPAA/HITECH compliance, including risk assessments, policies and procedures, incident response plan development, vendor assessment and management programs, and training.
  • Coached hundreds of companies through the investigation, remediation, notification, and overall response to data breaches of all kinds – PHI, PII, payment card, etc.
  • Helping organizations address questions about the application, implementation, and overall compliance with European Union’s General Data Protection Regulation (GDPR) and, in particular, its implications in the U.S., together with preparing for the California Consumer Privacy Act.
  • Working with organizations to develop and implement video, audio, and data-driven monitoring and surveillance programs. For instance, in the transportation and related industries, Joe has worked with numerous clients on fleet management programs involving the use of telematics, dash-cams, event data recorders (EDR), and related technologies. He also has advised many clients in the use of biometrics including with regard to consent, data security, and retention issues under BIPA and other laws.
  • Assisting clients with growing state data security mandates to safeguard personal information, including steering clients through detailed risk assessments and converting those assessments into practical “best practice” risk management solutions, including written information security programs (WISPs). Related work includes compliance advice concerning FTC Act, Regulation S-P, GLBA, and New York Reg. 500.
  • Advising clients about best practices for electronic communications, including in social media, as well as when communicating under a “bring your own device” (BYOD) or “company owned personally enabled device” (COPE) environment.
  • Conducting various levels of privacy and data security training for executives and employees
  • Supports organizations through mergers, acquisitions, and reorganizations with regard to the handling of employee and customer data, and the safeguarding of that data during the transaction.
  • Representing organizations in matters involving inquiries into privacy and data security compliance before federal and state agencies including the HHS Office of Civil Rights, Federal Trade Commission, and various state Attorneys General.

Benefits counseling experience – Joe’s work in the benefits counseling area covers many areas of employee benefits law. Below are some examples of that work:

  • As part of the Firm’s Health Care Reform Team, he advises employers and plan sponsors regarding the establishment, administration and operation of fully insured and self-funded health and welfare plans to comply with ERISA, IRC, ACA/PPACA, HIPAA, COBRA, ADA, GINA, and other related laws.
  • Guiding clients through the selection of plan service providers, along with negotiating service agreements with vendors to address plan compliance and operations, while leveraging data security experience to ensure plan data is safeguarded.
  • Counsels plan sponsors on day-to-day compliance and administrative issues affecting plans.
  • Assists in the design and drafting of benefit plan documents, including severance and fringe benefit plans.
  • Advises plan sponsors concerning employee benefit plan operation, administration and correcting errors in operation.

Joe speaks and writes regularly on current employee benefits and data privacy and cybersecurity topics and his work has been published in leading business and legal journals and media outlets, such as The Washington Post, Inside Counsel, Bloomberg, The National Law Journal, Financial Times, Business Insurance, HR Magazine and NPR, as well as the ABA Journal, The American Lawyer, Law360, Bender’s Labor and Employment Bulletin, the Australian Privacy Law Bulletin and the Privacy, and Data Security Law Journal.

Joe served as a judicial law clerk for the Honorable Laura Denvir Stith on the Missouri Court of Appeals.