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S. Carolina Supreme Court: Leaving Email In the Cloud Isn't Electronic Storage
New submitter Ibhuk writes "I leave my email stored online, as do many modern email users, particularly for services like Gmail with its ever-expanding storage limit. I don't bother downloading every email I receive. According to the South Carolina Supreme Court, this doesn't qualify as electronic storage. This means most email users are not protected by the Stored Communications Act. All your emails are fair game, so be careful what you write. From the article: 'This new decision creates a split with existing case law (Theofel v. Farey-Jones) as decided in a 2004 case decided by the Ninth Circuit Court of Appeals. That decision found that an e-mail message that was received, read, and left on a server (rather than being deleted) did constitute storage "for purposes of backup protection," and therefore was also defined as being kept in "electronic storage." Legal scholars point to this judicial split as yet another reason why the Supreme Court (and/or Congress) should take up the issue of the Stored Communications Act.'"
Isn't electronic what?
Joy! Beautiful spark of the gods!
...the could doesn't use servers, right?
"Murphy was an optimist" - O'Toole's commentary on Murphy's Law
This is an instance in which the court is just wrong.
The fact that they don't understand that it's electronically stored has no effect on whether it is. Courts can make all of the rulings in the world but if something objectively is or is not then it just objectively is or is not and regardless of court rulings.
Did that south carolina pageant girl get elected to the state's supreme court?
The legal system is just fucked. Clearly. Why the fuck was this written in terms of a "backup?" So that original copies were not protected? It's legal to steal originals, but illegal to steal backups? WHY??????????? Clearly the intent of the law was lost here...
And I says what?
So I can store my own email myself, but the court is forbidding me from contracting with anyone else to provide that service for me?
So if the phone hacking scandal that rocked (or still rocking) UK and News Corp, would not be illegal in the USA?
Wondering what would happen if that judge has a gmail/yahoo/hotmail (or more likely an AOL ) account, and it gets hacked and he gets his own ruling cited as the hacker walks away scot free.
sed -e 's/Chuck Norris/Rajnikant/g' joke > fact
Politicians and bureaucrats are not citizens, therefore are not protected by the constitution. Therefore they are enemy combatants and should be sent to gitmo.
No, the court ruled correctly. The law has a very specific definition of stored communications, and as such only applies to backups and transient copies, not long-term hosted data. It's a stupid definition, but that's congress's fault not the judge's.
This case notwithstanding, leaving email stored online for over 180 days may be fair game anyway. The Electronic Communications Privacy Act (part of which is the "Stored Communications Act") only requires government warrants for materials stored less than 180 days. For materials over 180 days, a mere subpoena may suffice (See 18 USC 2703(a) and (b)). I diligently remove all email over 120 days old (just to be sure) on a regular basis.
It is a backup... the other copy of the email is in my brain.
...the person who has to transcribe my emails to paper and type them in when I want to read them.
So all corporate data stored in the cloud not encrypted so much as to be unreachable is also fair game?
I can see a massive exodus from Cloud Computing if it's all fair game for law enforcement.
Welcome to the dystopian future, citizen.
Lost at C:>. Found at C.
then they should be able to retrieve it without the benefit of electronic tools, like, you know, computers ...
"...yet another reason why the Supreme Court (and/or Congress) should take up the issue of the Stored Communications Act."
I agree that this should be taken up and clarified in law, I'm just not so sure Congress is up to doing it right.
Is my skepticism showing through??
Save early, Save often
The ECPA refers to a defintion of "electronic storage" contained in the Wiretap Act (18 USC 2510, item (17)) which was never intended to encompass cloud email:
(17) "electronic storage" means--
(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;
The court logically concluded that if the only copy of the received email is stored in a cloud email account, that copy is not stored for purposes of backup protection of such communication.
If you are one of those individuals who joyfully cries "RAID is not a backup," then you essentially agree with this court.
A court, even a Supreme Court, is not empowered to fix "bad statutes" by rewriting them. That pesky separation of powers doctrine requires that Congress pass legistlation to fix the defect, and the President sign that legislation, and no amount of wailing about the illogic of what the law "should be" versus what it is will change that requirement.
And if you are one of the myriad of individuals whose email provider withdrew POP access to force you to IMAP, then you're also screwed because now you CANNOT delete an email from the providers copy of your inbox without also deleting it from your copy of your inbox.
For us longtime MobileMe subscribers we could still use POP until around the time iCloud debuted and then Apple deployed bug fix updates that withdrew POP access.
It is information which my personal, copyrighted property, that I am storing in a rented storage facility, and am letting you see.
I am intending only to let certain people in to the storage container to see the property. Anyone else is trespassing and also
in copyright violation.
So what do laws say about the warrantless search of personal property?
(Lest you say that cloud storage is not rented, remember that you are paying Google the value of yourself as an ad-target.)
Where are we going and why are we in a handbasket?
From the actual ruling "We decline to hold that retaining an opened email constitutes storing it for backup"
So a way to cause all sorts of problems for this ruling would be to use an email client that never tells the ISP the email was Opened. if the ISP does not know if the email was opened it would be in the position to assert that the emails still falls under the ruling that the storage is "incidental to the electronic transmission thereof"
Also what kind of havoc would changing all emails to "unread" cause? Are they going to demand to see access logs to see if you retrieved the emails, then how could they proved that just because it was retrieved that it was also "Opened". It would be interesting to see the legal definition of "Opened" as applied to electronic mediums and even physical mediums. Is a physical letter legally considered read as soon as it is placed in my mail box?
You might want to take a few hours to explain what "cloud" means in this context.
I swear to God...I swear to God! That is NOT how you treat your human!
Have I missed something,
The implications of this article is that it is legal to read someone's email before (after) they have read it as long as you read it on the transmissions channel
That is far more worrying then quibling over the definition of electronic storage.
We have seen it and we will keep seeing it until there is a major change of government in the U.S.
They write laws governing us and laws governing them [government and business]. The laws governing either are managed inconsistently. (That's the nicest way I know how to put it) The laws governing government are all but completely ignored. Constitutional issues never make it to the courts for challenge. They redefine reality in all areas of government. In this case, they say email is not "e" (electronic) and not storage. Sorry, but what?! These guys are not even pretending to hide their corruption or their agendas. They want unfettered access to our data and they are getting it.
It's just a formality that a judge is declaring email not electronic storage. They ALREADY have access to all electronic communications and all storage. They HAVE IT. They may or may not deny it. When the truth comes out, "retroactive immunity" is the response. FOIA requests are blocked forever.
How much clearer does it have to be?
They aren't our government any longer. They are our masters.
It's not wrong; it's jargon or technical terminology. And your profession can always define jargon, for use within that profession, to mean whatever-the-hell you want it to mean, regardless of whatever laypeople think it means.
If this were the first time the courts recycled existing word to mean something very special, and even incompable with everyone else's language, it would be an outrage. But this has been happening since before you were born, and you're probably quite familiar with many situations where courts redefine words to mean weird things, but you're just so used to it that it doesn't stick out anymore.
So it sucks, but it's not factually wrong, because the whenever an authority defines a term, that becomes the term's definition.. um .. by definition.
Electronic storage isn't always necessarily an instance of "electronic storage."
If I haven't downloaded my mail, then it's still in transit.
If I have downloaded my mail, then it's a backup.
If I've read my mail but not downloaded it, oh, wait, that's physically impossible, so it must be either in transit or it's a backup.
But it's neither a backup nor in transit, according to the court.
Help!
Knowledge is how to play a game, intelligence is how to win, wisdom is knowing what game to play.
Google's data centres are steam powered....
So.... doesn't that mean the data on MegaUpload was also not stored there?
Don't tell me that this is another case of when-its-convenient-to-be-the-one, it's the one and when-it's-convenient-to-be-the-opposite, it's the other?
Can not see the obvious for less than humanitarian reasons.
Corruption at the highest levels of government is the one an only reason for this.
'merica, land of "freedom".
If you read it you do. You cannot read it without downloading it. What you mean is that you do not create a local permanent copy of every email you read.
Warning: this article may contain humor, sarcasm, parody, and perhaps even irony. Read at your own risk.
If they were emails left in my Inbox, they might have a case. Maybe. And if they are ones left in my Inbox, it's likely I haven't figured out what to do with them and really don't care about the privacy asspect of them. I just have a difficult time throwing stuff away.
Email that I consider important is also keep on Gmail, even after I've read it. I also have it sorted into separate folders similarly to how one would put them in a filing cabinet. They are there specifically for archival/documentation purposes.
How do we do that! this guy is clueless.
They are not the United States of America. Just ask them.
They are confederate cotton pickers. They're inbred redneck monkeys. The south will never rise again, it never really did. They are already the slaves of modern America and they're too fucking stupid to even know it.
No one outside of South Carolina (or inside South Carolina, except for the rare occasion where you're bringing up federal discovery rules in state court) should care what the Supreme Court of South Carolina says about a federal statute.
Give up, close it all down, we're done. Let's go kill ourselves.
derp.
What if I download my email (i.e read it) and also create on online backup by means of a backup program called an email filter, which removes my email from the cloud server's inbox but stores a backup copy on said server's system in a separate imap-folder I specifically created for backup purposes?
As long as I have my email copied to another folder called Inbox.bak,Cloudstorage or Secret_Anti-government_Correspondence I should still be safe then?