Stored Communications Act Does Not Apply to Unauthorized Access to Previously Opened Emails

Lazette v. Kulmatycki, —F. Supp. 2d—, 2013 WL 2455937 (N.D. Ohio June 5, 2013)

When Plaintiff’s employment ended and she returned her company-issued Blackberry, she believed that she had deleted her personal email account.  She was mistaken.  Thereafter, her former supervisor, without her knowledge or authorization, proceeded to access and read her personal emails—48,000 of them—during the ensuing eighteen months. Plaintiff also believed that he shared the contents of those emails with others.  Plaintiff sued her former supervisor and her former employer for violation of the Stored Communications Act (“SCA”), among other things.  Defendants sought dismissal of Plaintiff’s SCA claims.  The court held that Plaintiff could not prevail on claims based on access to emails she had previously opened but not deleted, but declined to dismiss claims based on those emails that were accessed by the former supervisor before being opened by the plaintiff.

Defendants claimed that the former supervisor’s actions did not violate the SCA and argued:

• The relief plaintiff seeks is not available because the legislative history shows that Congress aimed the SCA at “high-tech” criminals, such as computer hackers;

• [The former supervisor] had authority to access plaintiff’s e-mails;

• [The former supervisor’s] access did not occur via “a facility through which an electronic communication service is provided” other than the company owned blackberry;

• The e-mails were not in electronic storage when [the former supervisor] read them; [and]

• [The former employer] may be exempt from the SCA under § 2701(c)(1), which states that the person or entity providing an electronic communications service is exempt from the Act, because the complaint does not make clear that plaintiff’s g-mail account was separate from her company account.

While the court largely rejected Defendants’ assertions, it did find in favor of Defendants–at least partially–with regard to the question of whether all of the accessed emails had been in “electronic storage”–a question that would affect liability under the SCA.

Under the SCA, “electronic storage” is narrowly defined 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.”  Several courts have ruled that “only e-mails awaiting opening by the intended recipient are within this definition.”  Thus, the court concluded, “plaintiff cannot prevail to the extent that she seeks to recover based on a claim that [the former supervisor] violated the SCA when he accessed e-mails which she had opened but not deleted.”

With regard to emails which were previously unopened by the plaintiff when accessed, Defendants argued that Plaintiff’s allegations failed the Twombly/Iqbal test because she did not specify which of the emails allegedly accessed by the defendant were “awaiting opening.”  The court reasoned, however, that “[g]iven the volume of emails” at issue, a “fair and plausible inference” that Defendant opened some of the emails before Plaintiff could be drawn.  Thus, the court “overrul[ed] defendants’ complaint to the extent that it [sought] dismissal in toto of plaintiff’s SCA claim” but dismissed Plaintiff’s claim as to emails that were accessed only after she had opened them.