Stored Communications Act Applies to Previously Opened Web-based Emails

Cheng v. Romo, No. 11-10007-DJC, 2013 WL 6814691 (D. Mass. Dec. 20, 2013)

In this case, the court addressed the question of whether previously opened web-based emails were in “electronic storage” as defined by the Stored Communications Act (SCA) and determined that they were. 

Plaintiff sued Defendant for accessing his web-based emails without authorization in violation of the Stored Communications Act.  Although Defendant admitted accessing the emails, she argued that because they had previously been opened by Plaintiff, they were “not in ‘electronic storage’” as described by the statute.

The SCA defines “electronic storage” 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 purposes of backup protection of such communication[.]”  In the present case, Plaintiff asserted that his emails were covered “at least by the second prong.” 

The question of whether web-based emails are in “electronic storage” for purposes of the SCA has been addressed by several courts with mixed results.  In the present case, the court acknowledged the competing decisions of different courts that had addressed the issue, but found that the SCA was applicable in this case.

In concluding that the emails were in “electronic storage,” the court reasoned, in part:

Romo argues that Cheng’s emails also do not fall under 18 U.S.C. § 2510(17)(B) “because Yahoo!’s server was the only location at which the emails were stored when Defendant accessed them, [so] they could not possibly have served as ‘ backup’ storage.” D. 71 at 9. However, the record reflects that when Romo used her web browser to access Cheng’s emails, the text of those emails were transmitted to her own Internet browser, which is how she was able to see, and later print, Cheng’s emails. See D. 97 at 14 (testimony by Cheng that one “could download a representation of the web page as it was displayed to [a user] by the Yahoo! server”). The reasonable inference based on the trial testimony is that regardless of the number of times Cheng or Romo viewed Cheng’s email (by downloading web page representations of those emails into their personal computer’s web browser) the Yahoo! server continued to store copies of those same emails that previously had been transmitted to Cheng’s web browser, and again to Romo’s web browser. On this record, Cheng’s emails were held in “storage of such communication by an electronic communication service for purposes of backup protection of such communication.” This conclusion holds true irrespective of Cheng’s testimony that Cheng himself did not further back up his emails.

The court went on to discuss the competing findings of other courts that had addressed this issue and specifically rejected a line of reasoning that would result in liability premised upon the software utilized to accomplish the unauthorized access (e.g., did the unauthorized user access the emails through an “e-mail client program” that downloaded the email from the web to that program—thus leaving a copy behind on the server in backup storage—or did the unauthorized user access the email through a web browser).