In the midst of a heated litigation commenced by an employer against its former employee for alleged violations of a non-compete agreement, an employee returned the cell phone she used during her employment. Prior to returning the phone, she deleted all emails that were stored on the phone. However, the employer was able to access the employee’s already opened personal emails that were stored on Google’s servers. The employee commenced an action claiming that the employer intentionally accessed her emails without authorization in violation of the federal Stored Communications Act (“SCA”). In ruling on a motion to dismiss, the federal district court in Maryland permitted the claims to proceed. Levin v. ImpactOffice LLC.

In opposing the motion, the employer-defendant claimed that the plaintiff failed to state a claim under the SCA because she did not allege that the emails were in electronic storage as defined by the SCA because the emails already had been opened. The SCA is violated when someone “intentionally accesses without authorization …and thereby obtains . . . access to a wire or electronic communication while it is in electronic storage. . . .”. According to the defendant, access while in “electronic storage” requires that the emails be unopened. Relying on Fourth Circuit precedent, the court concluded that opened emails do not meet the definition of “electronic storage” under the SCA. However, the court permitted the case to proceed nonetheless because at this early stage of the litigation the determination of whether the emails were or were not actually opened was a question of fact that could not be resolved on a motion to dismiss. Simply alleging that defendant made unauthorized access was sufficient to defeat the motion.

The court also noted that plaintiff’s claim could proceed because the emails could have been stored by plaintiff for “backup protection” in which case, under the SCA, the opened or unopened status of the emails would be irrelevant.

This case reminds us that the protections given to personal emails are ever expanding. Employers or any other entities or individuals are urged to use excess caution before accessing another’s personal email.