Leaving single copies of email on the server of one's web-based email account (in this case Yahoo!) without downloading them or saving them to another location does not constitute storing the emails for backup protection under the Stored Communications Act (SCA), according to the South Carolina Supreme Court. Jennings v. Jennings, S.C. Sup. Ct. Oct. 12, 2012, No. 27177. This case arises out of civil litigation relating to a domestic dispute, but can affect how the SCA is applied in other contexts where a person's or employee's email account is accessed by an unauthorized third party. The case also highlights the difficulty courts have had with consistently applying this somewhat dated law to current technology. 

When the plaintiff's spouse learned her husband was having an affair, she confided in her daughter-in-law who then gained access to the husband's Yahoo! account which contained emails corroborating the affair. When these emails became part of the divorce proceedings, the husband sued and alleged, among other things, that his Yahoo! account had been illegally hacked under the SCA. The court of appeals found that the e-mails were in electronic storage, therefore triggering the SCA. The state's Supreme Court disagreed.

The SCA is violated when a person:  

(1) intentionally accesses without authorization a facility through which an electronic communication service is provided; or

(2) intentionally exceeds an authorization to access that facility;

and thereby obtains, alters, or prevents authorized access to a wire or electronic communication while it is in electronic storage in such system shall be punished as provided in subsection (b) of this section.

18 USC 2701(a). However, the decision came down to the meaning of "electronic storage," defined in 18 USC 2510(17) to mean:

(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;

The Court acknowledged differing views on how this definition has been interpreted - noting that the Department of Justice prefers the interpretation that both (A) and (B) be established to constitute electronic storage, while a majority of courts have found only one of the two prongs needs to be met. Because the plaintiff only alleged storage under (B), the Court focused on when electronic communications are stored for purposes of backup protection.

In that connection, the Court noted that the plaintiff left single copies of his e-mails in his Yahoo! email account, without saving or downloading them elsewhere. Looking to a dictionary definition of "backup" - "one that serves as a substitute or support" - the Court held that use of a backup presupposes the existence of another copy. Since there was no other copy according to the Court, the plaintiff could not have been storing the email for backup protection and, therefore, the defendant could not have violated the SCA.  A concurring opinion by Judge Kittredge, however, suggests a more in-depth analysis.

This case make clear that businesses, attorneys and individuals need to proceed with caution when conducting investigations that involve electronic communications, a necessary source of information for just about any investigation. Something that may appear to be clearly in or not in "storage," may not hold true should the matter be analyzed by a court, or a state or federal agency.