Opened Web-based Emails Deemed “Electronic Storage” under the Stored Communications Act

One morning, a mailman delivers mail to your mailbox.  You can make the statement that “the mailbox stores your mail.”  Later that day, you retrieve and open the mail.  “The mail is no longer being stored,” correct?  While logically sound for paper mail, the same cannot be said for email communications.

The Fourth Amendment of the U.S. Constitution protects individuals against unreasonable searches and seizures.  In 1986, the Stored Communications Act (“SCA”) was enacted in part to create such protections for electronic communications stored on the internet.  While seemingly straightforward, courts throughout the nation have inconsistently opined as to whether or not various emails constitute “electronic storage” for purposes of the SCA.  This should come as no surprise considering that the SCA was enacted four years prior to when the first internet webpage was developed, therefore making it difficult for courts to harmoniously apply the SCA’s terms of art to modern day web-based email communications.

Recently, a federal court in Massachusetts was tasked with determining whether previously opened emails within a web-based email system, such as Yahoo!, were considered “electronic storage” as defined by the SCA.

In Cheng v. Romo, 2013 U.S. Dist. LEXIS 179727 (D. Mass. 2013), the Plaintiff initially opened and read his own emails in his Yahoo! email account.  Thereafter, the Defendant, without permission, used the Plaintiff’s password to log into and access the Plaintiff’s Yahoo! email account.  Upon learning that the Defendant accessed these web-based emails, the Plaintiff sued alleging a violation of the SCA.

The SCA holds anyone liable who “intentionally accesses without authorization a facility through which an electric communication service is provided . . . and thereby obtains . . . [an] electronic communication while it is in electronic storage in such a system.”  Although the Defendant admitted to logging into the Plaintiff’s Yahoo! email account and reading the Plaintiff’s emails, the Defendant argued that these emails could not be deemed “in electronic storage” since the Plaintiff had previously opened them, and therefore no SCA violation occurred.

“Electronic storage” is defined by the SCA as: “(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[.]”  Despite the statutory inclusion of the word “and” between these two prongs, the Cheng court decided that an email could be deemed “in electronic storage” if it meets either of these two prongs.  As such, the Plaintiff argued that regardless of whether he previously opened his own emails or not, these emails satisfied the second prong (namely that they were being stored “for purposes of backup protection”) and thus should be afforded SCA protection.  The Defendant responded by arguing that because the Plaintiff’s emails were stored only on the Yahoo! server, these emails could not have served as backup storage.

After acknowledging that neither the U.S. Supreme Court nor the 1^st Circuit had yet to establish precedent regarding this issue, the Cheng court held that the SCA applied to the Plaintiff’s emails.  The court reasoned that the Plaintiff’s act of previously accessing and opening his emails resulted in the Yahoo! server displaying a representation of the email on a separate webpage, and left a stored backup of that email on the Yahoo! server, thereby satisfying the statutory definition of “electronic storage.”

The court further added that regardless of the specific type of software (e.g. web-based vs. email client program) someone used to initially open and/or download emails, if that person did not intend to make his or her emails available to the public, then the SCA protects such emails from being made so.

In this rapidly developing field of law, email users may feel at ease knowing that this federal court held that email communications, whether previously opened or not, are afforded SCA protections.

If you or your company has any questions or concerns regarding e-discovery related issues, contact James G. Ryan at jryan@cullenanddykman.com or via his direct line at  516-357-3750.

Special thanks to Scott Brenner, a law clerk at Cullen and Dykman, for his help with this post.