Previously opened emails are considered to be in “electronic storage” and can, therefore, be the basis for claim under the federal Stored Communications Act, the 4th U.S. Circuit Court of Appeals has ruled in a matter of first impression.

The plaintiff in the case, Patrick Hately, alleges that his old emails were rifled through after his love triangle became something of a love square. His girlfriend, Nicole Torrenzano, with whom he shared his email passwords, began having an affair with David Watts. Watts’s wife sought a divorce; Torrenzano claimed that the wife had begun having an affair with Hately and gave Watts the password to Hately’s email in order to do some snooping, Hately claims.

After learning of the intrusion, Hately sued Watts and Torrenzano in a Virginia federal court in 2017, alleging violations of the federal Computer Fraud and Abuse Act and the federal Stored Communications Act. U.S. District Judge Anthony Trenga dismissed the claims, saying previously opened emails were not protected by the Stored Communications Act because they were not in “electronic storage” as defined by the law.

But Judge James Wynn, writing for a unanimous panel in a March 6 opinion, reversed the ruling, finding that previously opened and delivered emails fall squarely within the law’s ambit.

Regardless of whether Hately had already opened or accessed the emails, Wynn said, they were “reserved for future use” by the email host, and so therefore were in “electronic storage.”

While the district court had held that previously delivered emails did not fall within the meaning of “backup protection” as defined by the Stored Communications Act because the term only referred to copies made for the provider’s administrative purposes, Wynn said this was incorrect because it assumes that backup protection is the same thing as a “backup copy,” which has a very specific and different definition under the statute.

The district court also erred in misinterpreting the definition of electronic storage, Wynn said, and it failed to recognize that email service providers can function as both an electronic communication service and a remote computing service simultaneously.

“It defies logic that the unopened junk and spam email messages that a user leaves in his or her inbox or designated folder without opening would be entitled to more protection than those messages the user chooses to open and retain,” Wynn said. “We do not believe Congress intended such an absurd result.”

Eric Menhart of Lexero Law in Washington D.C. represented Hately on appeal. He said that he believes the court’s Stored Communications Act decision will have ramifications beyond the 4th Circuit.

“The 4th Circuit saw an opportunity to put down a clear ruling about how to interpret the statute,” Menhart said. “This will be a go-to ruling as courts continue to interpret this statute.”

Jonathan Frieden of Odin, Feldman & Pittleman in Reston, Virginia, represented Watts on appeal. He did not immediately respond to requests for comment.

The 55-page decision is Hately v. Watts (Lawyers Weekly No. 001-050-19). The full text of the opinion is available online at

Follow Matt Chaney on Twitter @SCLWChaney

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