The Supreme Court of South Carolina ruled on October 10, 2012 that reading another person’s webmail does not constitute a violation of the 1986 Stored Communications Act (SCA), causing a split in judicial authority on the matter. Indicating a need for Supreme Court review or national legislative reprisal of the statute, the South Carolina court determined that webmail does not meet the definition of electronic storage as laid out in the statute.

Supreme Court review or Congressional action is needed because a plurality of opinions exist on what constitutes electronic storage according to the Act, which was enacted well before the advent of either webmail or the cloud generally, both of which are in substantial use today. The United States Court of Appeals for the Ninth Circuit ruled in 2004 that an online email that had been read and left on a server constituted storage “for the purposes of backup protection,” and was considered “electronic storage.”

A major problem with the split in authority is that police can explore people’s email under the SCA so long as it is “relevant to an investigation.” As Ars Technica notes in its article on this situation, this makes the matter difficult for national ISPs, who must deal with different legal interpretations of the federal statute in different geographic locations. So when the South Carolina Supreme Court Justices define “backup” as requiring an additional copy of the email, and the United States District Court for the Eastern District of Pennsylvania interprets “backup” as including only temporary backup storage pending delivery of the email [PDF], the ISPs will have no way to determine which standard is applicable on a nationwide basis, and how it should backup or not backup its users’ data—or if it needs to turn over email messages stored on their servers as part of a webmail service like Gmail.

The Justices concurred in their overall decision, bet were split on what constitutes a protected email. Orin Kerr outlines this split well at The Volokh Conspiracy. In all, this is a situation we should keep an eye on, as it is sure to need clarifying as the use of online storage proliferates in the near future.

(photo: Shutterstock: 66713959)

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