September 28, 2016

South Carolina Supreme Court says web based emails aren’t protected by the Stored Communications Act

(LiveHacking.Com) – A South Carolina Supreme Court has ruled that emails stored in the cloud, on services like Google and Yahoo, aren’t classified as “electronic storage”. This means that reading someone’e online email without their permission or knowledge isn’t an offense under the Stored Communications Act (SCA).

According to the act, it is criminal behavior for anyone to “intentionally accesses without authorization a facility through which an electronic communication service is provided or… intentionally exceeds an authorization to access that facility; and thereby obtains, alters, or prevents authorize access to a wire or electronic communication while it is in electronic storage in such system.”

The problem is that the act defines electric storage as “any storage of such communication by an electronic communication service for the purposes of backup protection of such communication.” And the judges have ruled that since emails in Gmail or Yahoo aren’t backups, but the actual originals of the messages, then web based emails aren’t covered.

According to a report by Sophos, earlier court rulings found that the cloud based emails were in “electronic storage”, thus protected under the SCA. Last week’s ruling reversed that decision, saying that earlier court decisions had misunderstood the definition of “electronic storage” under the Act and incorrectly concluded the e-mails had been stored for the purpose of backup protection.

“All of the discussions regarding backups, temporary copies, and the read/unread distinction seem to have very little to do with the way that most people perceive their use of e-mail” said Woodrow Hartzog, a professor at the Cumberland School of Law at Stanford University.

However, Hartzog did point out that there could still be federal liability under the Computer Fraud and Abuse Act.

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