South Carolina Business Law Blog

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 The SCA provides a civil cause of action against anyone who “intentionally accesses without authorization a facility through w...

It has scarcely been a month since this post describing Jennings v. Jennings , and the the S.C. Court of Appeals' construction of the Stored Communications Act . The South Carolina Supreme Court granted Certiorari to review the opinion, and on October 10th reversed the decision of the Court of Appeals .  Three of the five Justices on the Court issued opinions in the case, underscoring the difficulties in construing this law enacted before the advent of browsers and webmail.    Click here for the facts. The Majority Opinion: This is not Backup 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 Section 2510(17)(B) of the Wiretap Act:  "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 tha...

The infamous Willie Sutton reportedly was once asked why he robbed banks.  His simple answer:  "That's where the money is."  Likewise, in an information age, the information that forms the basis for legal disputes is increasingly stored on computers. The South Carolina Court of Appeals recently considered a claim under the federal Stored Communications Act (SCA), found at Title II of the Electronic Communications Privacy Act (ECPA).  And the 4th Circuit Court of Appeals reviewed a decision of the United States District Court for the District of South Carolina considering the reach of the Computer Fraud and Abuse Act (CFAA). It is not surprising that litigants seek to take advantage of the civil liability provisions of these computer crime statutes when their adversaries obtain,  transmit, and share electronically stored information. The challenge for courts construing these laws is that both of them were enacted in 1986, before the Internet and email (as ...