Court Rules on What eMail Backup Means

05 November 2012 Internet, IT & e-Discovery Blog Blog
Authors: Peter Vogel

What is meant by email backup was determined in a recent ruling that decided once the email had been read that it was not in backup storage and therefore the protection of the 1986 Stored Communications Act (SCA) no longer applies. The South Carolina Supreme Court recently ruled in Jennings v. Jennings that after emails were read, the husband could no longer use the SCA to limit access. The majority of the Court ruled:

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 e-mail 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, 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.

Under the SCA there are two types of records “electronic communication service” (ECS) which are controlled internally within a business like on company owned computers and servers. The other “remote computing service” (RCS) which are stored remotely like at gmail, Facebook, and telephone records at AT&T.

Even though the SCA was designed for telephone records in 1986 Internet Service Providers (ISPs), and under the SCA, ISPs provide RCS as a result ISPs have relied on the SCA to limit providing postings and emails unless the owner of that data approves. As well, the SCA only allows a civil suit if the emails accessed were in “electronic storage.” Electronic storage is defined in the SCA as:

(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.

This South Carolina Supreme Court ruling may impact other Courts around the US, and as a result change the use of the SCA, so stay tuned.

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