By: Adam Shamah
SCOTUSBlog’s “Petition of the day” Tuesday was the cert. petition in Jennings v. Broome, which asks the Supreme Court to answer “Whether e-mails stored by an e-mail provider after delivery are in “electronic storage” under the Stored Communications Act, 18 U.S.C. §§ 2701.”
If the Supreme Court grants cert., it’s decision could majorly impact privacy law. We covered the Act’s protections in class. They include regulations on disclosure to private parties and the government; prohibition on unauthorized access; and rules governing compelled disclosure by law enforcement. The petition notes the importance of the Stored Communications Act in protecting email privacy, given that the Wiretap Act protects only communications in transit and the Fourth Amendment typically does not apply due to the third party doctrine.
As the petition explains, “The prohibition of unlawful access … and the disclosure regulations … apply to communications that are in “electronic storage,” which is 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 purposes of backup protection of such communication… The scope of the SCA’s disclosure provisions and its protections accordingly turns on exactly what is encompassed by this definition.”
The case arose after a wife and husband separated. The wife and her daughter-in-law guessed the husband’s email password and printed several of his emails. The husband filed suit under the SCA’s “unauthorized access” provision. The Court of Common Pleas for
the Fifth Judicial Circuit of South Carolina granted summary judgment for the defendants, holding that e-mails were not “stored communications” because they had already been “transmitted and had reached their final destination” and thus could not be in “temporary, intermediate storage incidental to the electronic transmission.” Further “[b]ecause Yahoo was not storing the e-mails for its own ‘purposes of backup protection,’ the court reasoned that the e-mails failed to satisfy the second prong of the definition of electronic storage.” The South Carolina Court of Appeals reversed the trial court. The South Carolina Supreme Court then reversed again, offering three different opinions, each with a different rationale.
The South Carolina Supreme Court thus created a split with the Ninth Circuit on this issue. See Theofel v. Farey-Jones, 359 F.3d 1066 (9th Cir. 2004). The petition notes additional lower courts that have taken a variety of views on the matter. Hopefully, the Supreme Court will grant cert and decide whether billions of emails are protected by the Act or not.