SC Email-Hacking Decision Means SCA Confusion

October 16, 2012Articles Law360

The South Carolina Supreme Court ruled that accessing another person’s online (personal) email is not a violation of the federal Stored Communications Act. This holding is in direct opposition to what the Ninth Circuit Court of Appeals held in 2004 in Theofel v. Farey-Jones.

In the case of Jennings v. Jennings, a wife suspected that her husband was carrying on an affair, and her daughter-in-law then accessed the husband’s Yahoo account discovering email exchanges between the husband and his girlfriend to be used as “leverage” in the divorce.

The husband brought several causes of action against the soon-to-be ex-wife, her attorney and his private investigator, including the SCA. The lower court dismissed all counts against the defendants, the appeals court overturned the lower court decision with respect to violations of the SCA, and the Supreme Court of South Carolina took up the appeal.

The court focused on the definition of “electronic storage” under the SCA:
• (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.

This decision leaves an obvious split in the courts with respect to the SCA, which should be addressed by amending the legislation or by the United States Supreme Court.[1]

Unfortunately, there are no clear answers and accessing another person’s email remains a very, very dangerous activity.