Can the information obtained from my computer be used against me in my divorce?
The computer law in South Carolina is that while it may be a crime to obtain the information from someone's email, using it is not.
In the present case, Husband introduced evidence showing that Broome logged onto Husband's Yahoo email account without authorization by changing Husband's password. He also presented evidence that Broome, without Husband's consent, read and printed emails that were stored in Husband's Yahoo email account. Importantly, at least one court has held that comparable proof was sufficient to withstand a summary judgment motion in a section 2701 action. See Fischer v. Mt. Olive Lutheran Church, Inc., 207 F. Supp. 2d 914, 924-26 (W.D. Wis. 2002) (denying summary judgment to defendants in a cause of action for a violation of section 2701 where evidence was presented to show that defendants logged onto plaintiff's Hotmail account without authorization and printed plaintiff's emails). Because the circuit court was ruling on motions for summary judgment, it was required to consider the evidence presented by Husband. Accordingly, we conclude that the circuit court erred by granting summary judgment to Respondents based merely upon the fact that Husband failed to expressly allege in his complaint that Respondents "obtain[ed], alter[ed], or prevent[ed] authorized access to a wire or electronic communication while it [was] in electronic storage." See 18 U.S.C. § 2701(a) (2006).
II. Did the circuit court err in holding that the emails were not in "electronic storage" as contemplated by 18 U.S.C. § 2510(17)?
By its terms, section 2701(a) applies only to communications that are in "electronic storage." See 18 U.S.C. § 2701(a) (2006). Section 2510(17) 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.
18 U.S.C. § 2510(17) (2006) (emphasis added). In the present case, Husband contends that the emails in question fell within subsection (B) of section 2510(17) and that the circuit court therefore erred by holding that the emails were not in "electronic storage." We agree.
In its decision, the circuit court held that the emails in question fell outside the scope of section 2510(17)(B) because: (i) they were not stored by an "electronic communication service" (ECS); and (ii) they were not stored "for purposes of backup protection." As discussed below, we find that the circuit court erred in reaching those conclusions.
A. Were the emails stored by an ECS?
An ECS is defined as "any service which provides to users thereof the ability to send or receive wire or electronic communications." 18 U.S.C. § 2510(15) (2006). In the present case, the circuit court denied recovery to Husband based in part on its finding that "Plaintiff has not asserted or provided evidence from which to conclude he is an 'electronic communication service.'" Although we agree with the circuit court that Husband is not an ECS, the circuit court framed the issue incorrectly. Specifically, the circuit court should have addressed whether Yahoo was an ECS, rather than whether Husband was an ECS. Here, the emails in question were stored on servers operated by Yahoo. Therefore, the emails were stored "by" Yahoo. See Quon v. Arch Wireless Operating Co., Inc., 529 F.3d 892, 901 (9th Cir. 2008) ("By archiving the text messages on its server, Arch Wireless certainly was 'storing' the messages."), rev'd on other grounds sub nom. City of Ontario v. Quon, No. 08-1332, 2010 WL 2400087 (U.S. June 17, 2010). Although any emails stored by Husband on the hard drive of his computer would not be covered by the SCA, in this case, Broome did not access the emails in question from Husband's hard drive. Instead, she logged directly onto Yahoo's system and retrieved the emails from there. Accordingly, the relevant issue here is whether Yahoo constitutes an ECS.
Turning to that question, we hold that Yahoo is an ECS. Yahoo unquestionably provides its users with the ability to send or receive electronic communications. Any doubt regarding whether Yahoo constitutes an ECS is removed by the SCA's legislative history, which provides that "electronic mail companies are providers of electronic communication services." S. Rep. No. 99-541, at 14 (1986); see also H.R. Rep. No. 99-647, at 63 (1986) ("An 'electronic mail' service . . . would be subject to Section 2701.").
Wife, however, contends that Yahoo was acting as a "remote computing service" (RCS), rather than an ECS, at the time that the emails were accessed. RCS is defined as "the provision to the public of computer storage or processing services by means of an electronic communications system." 18 U.S.C. § 2711(2) (2006). The term refers to "the processing or storage of data by an off-site third party." Quon, 529 F.3d at 901; see also Orin S. Kerr, A User's Guide to the Stored Communications Act, and a Legislator's Guide to Amending It, 72 Geo. Wash. L. Rev. 1208, 1213-14 (2004) (describing customers of RCS as those that "paid to have remote computers store extra files or process large amounts of data").
In the present case, it is questionable whether Yahoo was providing RCS with respect to the emails in question. For instance, in Quon, the Ninth Circuit held that Arch Wireless, a company providing text messaging services to the city of Ontario, was not an RCS and that Arch Wireless therefore violated the SCA when it disclosed to the city the contents of text messages sent by city employees. Quon, 529 F.3d at 900-03. Nonetheless, even if Yahoo was acting as an RCS with respect to the emails at issue, there is no question that Yahoo was also acting as an ECS with regard to those same emails. Husband's account was still active, and Husband retained the ability to send (forward) any of the emails at issue to someone else. Notably, the House Report for the SCA indicates that, in such situations, the communications would still be protected under section 2701. See H.R. Rep. No. 99-647, at 63 (1986) ("[T]o the extent that a remote computing service is provided through an Electric Communication Service, then such service is also protected [under section 2701].").
Because Yahoo was providing ECS with respect to the emails at issue, this case is distinguishable from Flagg v. City of Detroit, 252 F.R.D. 346 (E.D. Mich. 2008), a case relied upon by Respondents. In that case, the court addressed whether text messages stored by a non-party service provider on behalf of the city of Detroit were discoverable in a civil action brought against the city. Id. at 347. The city claimed that disclosure of the text messages by the service provider was barred by section 2702(a) of the SCA, which prohibits RCS entities from knowingly divulging communications maintained on their systems and ECS entities from knowingly divulging communications that are in "electronic storage" on their systems. Id. at 349. The court disagreed with the city, finding that the service provider was acting as an RCS with respect to the text messages and that the city, as the "subscriber," could therefore give its consent to the disclosure of the messages under an exception set forth in section 2702(b)(3). Id. at 363. The court gave the following explanation for its conclusion that the service provider was acting as an RCS:
[T]he ECS/RCS inquiry in this case turns upon the characterization of the service that SkyTel presently provides to the City, pursuant to which the company is being called upon to retrieve text messages from an archive of communications sent and received by City employees in years past using SkyTel text messaging devices. . . . SkyTel is no longer providing, and has long since ceased to provide, a text messaging service to the City of Detroit—the City, by its own admission, discontinued this service in 2004, and the text messaging devices issued by SkyTel are no longer in use. . . . The Court finds, therefore, that the archive maintained by SkyTel constitutes "computer storage," and that the company's maintenance of this archive on behalf of the City is a "remote computing service" as defined under the SCA.
Id. at 362-63.
Here, unlike the situation in Flagg, Yahoo was providing email services to Husband at the time the emails at issue were accessed. Accordingly, Flagg is distinguishable from the present case.
B. Were the emails being stored "for purposes of backup protection"?
As noted above, to fall within section 2510(17)(B), a communication must not only be stored by an ECS, it must also be stored "for purposes of backup protection." In Theofel v. Farey-Jones, 359 F.3d 1066 (9th Cir. 2004), the Ninth Circuit addressed whether previously delivered emails held by an internet service provider (ISP) were stored "for purposes of backup protection" as contemplated by section 2510(17)(B). The court concluded that they were, explaining:
An obvious purpose for storing a message on an ISP's server after delivery is to provide a second copy of the message in the event that the user needs to download it again—if, for example, the message is accidentally erased from the user's own computer. The ISP copy of the message functions as a "backup" for the user. Notably, nothing in the Act requires that the backup protection be for the benefit of the ISP rather than the user. Storage under these circumstances thus literally falls within the statutory definition.
Id. at 1075.
Like the Ninth Circuit, we believe that one of the purposes of storing a backup copy of an email message on an ISP's server after it has been opened is so that the message is available in the event that the user needs to retrieve it again. In the present case, the previously opened emails were stored on Yahoo's servers so that, if necessary, Husband could access them again. Accordingly, we hold that the emails in question were stored "for purposes of backup protection" as contemplated by section 2510(17)(B).
Respondents nonetheless contend that, because Husband has not claimed that he saved the emails anywhere else, the storage of his emails could not have been for the purposes of backup protection. However, courts interpreting section 2701 have issued rulings that would seem to allow Husband's cause of action in this case. See Cardinal Health 414, Inc. v. Adams, 582 F. Supp. 2d 967, 976 (M.D. Tenn. 2008) ("[W]here the facts indisputably present a case of an individual logging onto another's e-mail account without permission and reviewing the material therein, a summary judgment finding of an SCA violation is appropriate."); Pure Power Boot Camp v. Warrior Fitness Boot Camp, 587 F. Supp. 2d 548, 555 (S.D.N.Y. 2008) ("The majority of courts which have addressed the issue have determined that e-mail stored on an electronic communication service provider's systems after it has been delivered, as opposed to e-mail stored on a personal computer, is a stored communication subject to the SCA."); Fischer, 207 F. Supp. 2d at 925-26 (rejecting argument that emails stored on Hotmail's system were not in "electronic storage").
Furthermore, we do not find Respondents' argument to be convincing. Under Respondents' construction of the SCA, the unauthorized access of a person's emails from an ECS would be unlawful if the person had previously saved his emails somewhere else, but would be perfectly lawful if the person had not done so. However, such an interpretation would lead to strange results. For instance, a person whose emails were stored solely with an ECS would generally suffer greater harm if someone "alter[ed]" or "prevent[ed] authorized access" to his ECS-stored emails than a person who had saved his emails in additional locations. Yet, under Respondents' construction of the SCA, only the person in the latter position would be protected. We do not believe that this was what Congress intended.
Indeed, the legislative history of the SCA supports the conclusion that Congress intended for the SCA to apply to the conduct Broome engaged in here. For instance, both the House and Senate Reports state that section 2701 "addresses the growing problem of unauthorized persons deliberately gaining access to, and sometimes tampering with, electronic or wire communications that are not intended to be available to the public." H.R. Rep. No. 99-647, at 62 (1986); S. Rep. No. 99-541, at 35 (1986). Additionally, the Senate Report provides the following illustration of what conduct would constitute a violation of section 2701:
For example, a computer mail facility authorizes a subscriber to access information in their portion of the facilities storage. Accessing the storage of other subscribers without specific authorization to do so would be a violation of [section 2701].
S. Rep. No. 99-541, at 36. Here, Broome has admitted that she accessed and read, without authorization, Husband's emails that were stored on Yahoo's system. The legislative history of the SCA indicates that Congress intended that such conduct would constitute a violation of section 2701.
One party can consent to the recording of a wire, electronic or oral communication pursuant to S.C. Code Ann. §§ 17-30-20, 17-30-30. However, it is a crime for a third party to do so. Consent is not required for the taping of a non-electronic communication by a person who does not have a reasonable expectation of privacy in that communication. The definition of an oral communication is set out in S.C. Code Ann. § 17-30-15.
Anyone whose communication has been unlawfully intercepted can sue for actual damages in the amount of $500 per day of the violation or $25,000, whichever is greater, and can also sue for punitive damages, costs, and attorney fees.
However, if the communication originates in another state, the recording may be unlawful under the laws of that particular state.
Recording Parent Child Phone Calls
Under certain circumstances it is legal in South Carolina for one parent to record the phone calls between the child and the other parent.
[A]s long as the guardian has a good faith, objectively reasonable basis for believing that it is necessary and in the best interest of the child to consent on behalf of his or her minor child to the taping of telephone conversations, the guardian may vicariously consent on behalf of the child to the recording. See
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