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A yellow light for hackers

The rare occasions when I am required to wade into the morass of the federal Stored Wire and Electronic Communications and Transactional Records Access Act (SCA), 18 U.S.C. § 2701 and Wire and Electronic Communications Interception and Interception of Oral Communications Act. 18 U.S.C. § 2501, I find myself hopeless lost and call upon our state family law/wiretapping guru, Richard G. Whiting, for clarity.

Thus it is with a combination of admiration, pity and confusion that I note the October 10, 2012 Supreme Court opinion in the case of Jennings v. Jennings, 401 S.C. 1, 736 S.E.2d 242 (2012),  Jennings involved a topic that recurs in family court litigation: the “hacking” into a spouse’s e-mail account to search for evidence of adultery–although in Jennings it was Holly Broome, the wife of a son from Wife’s previous marriage, who hacked into Husband’s account.  Husband brought a lawsuit for invasion of privacy, conspiracy, and violations of the SCA against Broome, Wife, and the private investigator to whom Broome had provided copies of the e-mails.  The circuit court granted summary judgment against Husband against all defendants on all claims.  The Court of Appeals affirmed on every issue but one: finding that Husband had a valid SCA claim against Broome.  The Supreme Court granted certiorari, reversed the Court of Appeals, and affirmed the decision of the circuit court.  It based this decision upon a determination that the e-mails in question were not in “electronic storage” as defined by 18 U.S.C. § 2510.  That definition is located in 18 U.S.C. § 2510(17):

(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 the purposes of backup protection of such communication.

Husband failed to argue that the definition in subsection (A) applied.  Thus, the Supreme Court confined its analysis to whether subsection (B) applied.  The primary opinion (Jennings was a 2-2-1 decision with all three opinions concurring in the result) concluded that it did not:

After opening them, Jennings left the single copies of his e-mails on the Yahoo! server and apparently did not download them or save another copy of them in any other location. We decline to hold that retaining an opened email constitutes storing it for backup protection under the Act.  The ordinary meaning of the word “backup” is “one that serves as a substitute or support.” Merriam-Webster Dictionary, http://www.merriamwebster.com/dictionary/backup. Thus, Congress’s use of “backup” necessarily presupposes the existence of another copy to which this e-mail would serve as a substitute or support. We see no reason to deviate from the plain, everyday meaning of the word “backup,” and conclude that as the single copy of the communication, Jennings’ e-mails could not have been stored for backup protection.

Accordingly, we find these e-mails were not in electronic storage.  We emphasize that although we reject the contention that Broome’s actions give rise to a claim under the SCA, this should in no way be read as condoning her behavior.  Instead, we only hold that she is not liable under the SCA because the e-mails in question do not meet the definition of “electronic storage” under the Act.

I think most folks would agree that it’s improper to hack into someone else’s e-mail account.  A distinction between allowable and prohibited hacks based upon whether the e-mail has not been opened, and therefore remains “stored,” or has been read by the intended recipient, is seen by most as rightly absurd.  Yet the law has always had difficulties keeping pace with communications technology.  This gap has become even more acute with the rise of the internet, wi-fi, and cellular communications.  That Congress is gridlocked in partisan struggle further inhibits the development of laws that reflect social expectations.

The Jennings opinion highlights the difficulties in fitting a law drafted for an era of analogue, wired, auditory phone calls to contemporary communications technology.  While  Jennings appears to open the door to e-mail hacking I would be very cautious recommending my clients hack into their spouse’s e-mail accounts.

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