The U.S. District Court for the Northern District of Ohio has held, in Lazette v. Kulmatycki, et al., that emails that the intended recipient has opened and not deleted are not in “electronic storage” within the meaning of the Electronic Communications Privacy Act (ECPA). Accordingly, a private party that views such emails without authorization cannot be sued under the statute. The court also held, however, that the intended recipient can sue someone who viewed unopened emails without authorization. Courts are split on the statute’s confusing definition of electronic storage. While proposed amendments to ECPA offered by Sen. Patrick Leahy and Rep. Zoe Lofgren would eliminate the distinction between opened and unopened communications when it comes to government access (i.e., they would require a search warrant for both), they would not address the disparity in treatment when it comes to protection against unauthorized access by private parties. One would think privacy advocates and ECPA “reformists” would be raising a ruckus about this. But they’re not. Is it because they want to allow unauthorized access by hackers and “whistleblowers” to confidential communications, or is it because they just haven’t noticed?