South Carolina Supreme Court Holds Web-Based Emails Not Protected Under The Stored Communications Act

Privacy/Cyber Risk & Data Security

On October 10, the South Carolina Supreme Court held that emails opened and retained by the recipient in a web-based email system are not protected under the Stored Communications Act (SCA), because they are not stored for the purposes of backup protection. Jennings v. Jennings, No. 27177, 2012 WL 4808545 (S.C. Oct. 10, 2012). The plaintiff sued an individual that gained unauthorized access to the plaintiff’s web-based email system, alleging, among other things, that the hacker violated the SCA. The SCA proscribes the unauthorized accessing of an electronic communication while it is in “electronic storage,” which in relevant part means that it is stored by an electronic communication service for the purpose of backup protection. The state supreme court noted that the plaintiff had opened the emails and retained them, but had not made any other copy of them. The court held that such emails, therefore, were not in “electronic storage” for the purposes of “backup” protection, reasoning that the plain meaning of “backup” does not apply to a single copy of a communication, i.e. web-based emails that are not downloaded to a computer or stored elsewhere.