It's All "Backup" Nowadays? Wrestling With the Stored Communications Act

Shoulda' Seen My Servers ....

Disputes of all kinds (between individuals, between businesses, between individuals and businesses, etc.) often highlight who said what to whom. In the information age, what better place to look for what has been said than in email communications? And as is often the case in litigation between jilted lovers and former business partners (acting like jilted lovers?), one party either has or can guess the email password of the other.

However, attorneys and their clients must be very careful in gaining access to email communications to which they are not a party. The Stored Communications Act (SCA), a 1986 federal statute  prohibiting unauthorized access to emails in certain circumstances, has been given very different readings by the South Carolina Supreme Court and the Fourth Circuit Court of Appeals.


The SCA provides a civil cause of action against anyone who “intentionally accesses without authorization a facility through which an electronic communication service is provided . . . and thereby obtains, alters, or prevents authorized access to a wire or electronic communication while it is in electronic storage in such system[.]” 18 U.S.C. § 2701(a)(1).

The SCA defines "electronic storage" 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[.]
18 U.S.C. § 2510(17).

Email is unquestionably "an electronic communication," and the "temporary" storage described in 18 U.S.C. § 2510(17)(A) does not come into play (at least in the current prevailing view of the SCA), leaving courts to consider whether whether emails are in "electronic storage" for "purposes of backup protection."

South Carolina Supreme Court: Web-Based Emails Are Not "Backup"

In 2012, the South Carolina Supreme Court, in Jennings v. Jennings,  reviewed a decision of the S.C. Court of Appeals concluding that emails in Mr. Jennings' Yahoo! account were in "electronic storage," and that therefore the SCA had been violated when those emails were accessed. For more on the Court of Appeals' opinion, click here.

Justice Hearn rejected the rationale of the Court of Appeals that Mr. Jennings' single copies of previously opened Yahoo! emails were stored "for purposes of backup protection" pursuant to 18 U.S.C. § 2510(17)(B):  

"We decline to hold that retaining an opened e-mail constitutes storing it for backup protection under the Act."  

Employing the ordinary meaning of "backup" as "one that serves as a substitute or support," Justice Hearn reasoned that since Mr. Jennings left the only versions of these emails on the Yahoo! server, (and did not download them to a device or save them elsewhere), there were no "backup" copies of these messages (at least as far as Mr. Jennings was concerned). Therefore, the messages were not in "electronic storage," and there was no violation of the SCA. 

Notably, in concurrence with the result, Justices Toal and Pleicones offered different constructions of the SCA than Justice Hearn, underscoring the difficulty courts have making sense of a law originally enacted in 1986. For more on the S.C. Supreme Court's opinion, click here.

The 4th Circuit- Web-Based Emails Are "Backup"

On March 6, 2019, the 4th Circuit took a much broader view of "backup," concluding in Hately v. Watts that delivered and opened emails retained on a Gmail server were "stored for purposes of backup protection" and therefore subject to the SCA. Broad brush, there are numerous "backup" copies created of each web-based email message (and used for the "backup" purposes of both the user and the email provider), as web-based email platforms store messages until their users want to destroy them.  

More fundamentally, email messages don't really "substitute"or "support" any "original," so that framework (there has to be an original in order to have a "backup") loses its relevance (or resonance) when moving from analog to digital. (This is some of the same debate that takes place in the context of using electronic documents pursuant to the eSign Act or the South Carolina Uniform Electronic Transactions Act, or even more broadly the double-spend problem presented by digital currencies, but we can dive a little deeper into that another time). 

Well, They Were "Backup" For a Time - To a True Original

Conclusion: Know Your Court-- and Proceed With Caution

Decisions of the 4th Circuit Court of Appeals are only binding on South Carolina federal courts. and are not considered precedent in S.C. state courts. However, given the different constructions of the SCA provided by the South Carolina Court of Appeals, three justices of the South Carolina Supreme Court, and the 4th Circuit Court of Appeals, relying on one particular view of the SCA to support access to someone else's email is risky at best. 

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