Thursday, December 13, 2012

Fifth Circuit surprises no one with decision that accessing another's text messages on their cell phone doesn't violate SCA

In Garcia v. City of Loredo, Texas, No. 11-41118 (5th Cir. 2012), the Fifth Circuit held that a person accessing text messages and images on the cell phone of another does not violate the Stored Communications Act (SCA). Those of you who have ever studied the SCA are certainly not surprised.

Garcia worked as a police dispatcher, and the wife of a coworker took Garcia's phone from her locker at work. After finding text messages and photos that showed department policy violations, the coworker's wife set up a meeting with the deputy assistant city manager and the interim police chief. The images and texts were shown, the videos were copied off of the phone, and Garcia was fired. Garcia later filed suit, and summary judgement was granted with regard to her SCA claim.

Her argument before the Fifth Circuit was that her cell phone was a "'facility' in which electronic communication is kept in electronic storage in the form of text messages and pictures stored on the cell phone." The Fifth cited a variety of district court cases, a law journal article by Professor Kerr, and the legislative history to back up its holding that devices such as cell phones are not facilities under the act.

The court also held that even if the cell phone was a "facility," the text messages and images certainly do not fit into the SCA's definition of "electronic storage." A common sense definition might make one think that would be the case, but we are, of course, dealing with statutes. Under the SCA, data is only in electronic storage when it "has been stored by an electronic communication service provider." If you want to know what that means, click here.

Thus, the Fifth affirmed the district court's grant of summary judgment, dismissing Garcia's SCA claim.


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