SC: Under SCA, an email read and kept on the email server is no longer in “electronic storage”

An email read and kept on the email server is no longer in “electronic storage” for SCA purposes (splitting with the Ninth Circuit). Jennings v. Jennings, No. 27177 (S.C. October 10, 2012) (2-2-1):

The court of appeals agreed with Jennings and held the e-mails were in “electronic storage” because they were stored for backup protection pursuant to subsection (B). Broome argues this conclusion was based upon an improper interpretation of section 2510(17), asserting that the definition of “electronic storage” within the SCA requires that it must be both temporary and intermediate storage incident to transmission of the communication and storage for the purposes of backup protection. She therefore contends that an e-mail must meet both subsection (A) and subsection (B) to be covered by the SCA. We acknowledge that this reading is the interpretation espoused by the Department of Justice as the “traditional interpretation” of section 2510(17). However, it has been rejected by the majority of courts in favor of a construction that an e-mail can be in electronic storage if it meets either (A) or (B). See, e.g., Theofel v. Farey-Jones, 359 F.3d 1066, 1075 (9th Cir. 2004); …

Because Jennings has only argued his e-mails were in electronic storage pursuant to subsection (B), it is unnecessary for us to determine whether to adopt the traditional interpretation advocated by the Department of Justice or the interpretation recognized by these cases. …

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, 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.

HT and see Orin Kerr, South Carolina Supreme Court Creates Split With Ninth Circuit on Privacy in Stored E-Mails — and Divides 2-2-1 on the Rationale on Volokh Conspiracy.