Court Says No Privacy in Yahoo! Emails
If you thought your Gmail or Yahoo! mail accounts were safe from prying eyes, think again. The illusion of privacy in cyberspace took yet another hit on Oct. 10 when the South Carolina Supreme Court declared, in effect, that reading someone else’s Yahoo! emails doesn’t violate federal law.
The Stored Communications Act is an archaic 1986 federal law that courts are still trying to apply to technologies that were never even imagined when the law was drafted. Judges are forced to stretch the law to cover the disclosure by Internet service providers (ISPs) of electronic communications like emails, tweets and other Internet-based forms of communication for lack of anything better to work with.
The SCA allows someone to bring a civil suit when emails in “electronic storage” are accessed without authorization. The case in question, Jennings v. Jennings, involved a husband who was cheating on his wife. Mr. Jennings sued under the SCA after his wife’s daughter-in-law hacked into his email account and shared incriminating emails with Mrs. Jennings’ lawyer and her private investigator.
“After opening them, Jennings left the single copies of his emails on the Yahoo! server and apparently did not download them or save another copy of them in any other location,” according to the opinion. Although the five justices on the South Carolina high court differed over why, they all agreed that the emails at issue were not in “electronic storage,” and thus Mr. Jennings was out of luck – at least in his lawsuit.
Old Law, New Tricks
“The Stored Communications Act gives high privacy protection to e-mails in the course of delivery, and then gives lesser privacy to remotely stored files in the cloud,” explains Professor Orin Kerr, a computer crime law expert at George Washington University Law School, in a post on The Volokh Conspiracy, an academic blog that addresses a range of legal issues.
But interpreting how opened emails held by an ISP should be treated is just one of many thorny questions under the statute.
Twitter, for instance, suffered – and is still suffering – a major headache under the SCA in the Malcolm Harris case. There, the SCA only required a warrant for tweets that were less than 6 months old; all but one of Harris’s tweets at issue were older, so a subpoena was all prosecutors needed to get the protester’s tweets from Twitter.
The key to Mr. Jennings’ case lay in the interpretation of the two ways of keeping emails in “electronic storage” that are protected under the SCA:
- “Any temporary, intermediate storage of a wire or electronic communication incidental to its electronic transmission…” For example, Mr. Jennings’ emails were protected under the SCA until he opened them because the law wouldn’t have viewed them as “received” until he’d actually read them.
- “Any storage of the communication by an electronic communication service for the purposes of backup protection of such communication.” In other words, the messages in his online Yahoo! account could have been viewed as backup copies if Mr. Jennings had downloaded them to his computer or saved them somewhere else after reading them.
Courts are forced to apply the outdated language of the 1986 law to new technologies like cloud storage, and servers held by ISPs versus those held by businesses. It’s no surprise that courts have disagreed over the definition of “backup” as a result.
Confusion Continues…for Now
The justices in the Jennings case all agreed that the emails in Jennings’ Yahoo! account were not backups, so the SCA did not protect them. But they couldn’t agree over why, according to Kerr.
Two justices said they weren’t backups because Jennings didn’t download any copies, and so how could the originals be “backups”? Two other justices said that because Yahoo! didn’t create the messages for its own purposes, they didn’t qualify; and a third agreed with the latter two but interpreted the SCA in a completely different way.
The confusion in this case is typical of the way judges have struggled with this law, but they’re not the only ones who are confused.
“This is an issue that really calls out for U.S. Supreme Court review,” Kerr concludes. “Given [ISPs’] national customer base, any disagreement among lower courts causes major headaches: ISPs don’t know which rule to follow.”
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