In Jennings v. Jennings, No. 27177 (S.C. 2012), the South Carolina Supreme Court held that e-mails simply left in a user's account after being read are not in "electronic storage" and thus not protected by the federal Stored Communications Act (SCA). The statute, enacted in 1986, addresses unlawful access to stored communications and prescribes criminal and civil penalties for such access.
At issue on appeal was whether the e-mails were in electronic storage. The court of appeals had held they were because they "were stored for 'purposes of backup protection,'" relying on the Ninth Circuit's Theofel case (which found that leaving an e-mail on the server was electronic storage). However, the supreme court disagreed.
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."Therefore, because the e-mails were not protected by the SCA, the statute does not provide a remedy for Jennings. The court emphasized, however, that their decision "should in no way be read as condoning [such] ... behavior."
Under the SCA, "electronic storage" is defined as:
(A) any temporary, intermediate storage of a wire or electronic communication incidental to the electronic transmission thereof; andMany courts have determined that e-mails may be protected if they fit into either subsection A or B, despite the use of the word "and" between them. The majority opted not to decide the issue, noting that "[w]hatever doesn't make any difference, doesn't matter," but the chief justice argued that both are required in a concurring opinion. The distinction matters because if both are required, once "the recipient opens [an] e-mail, ... [it] is no longer in electronic storage."
(B) any storage of such communication by an electronic communication service for purposes of backup protection of such communication;