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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.'"
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.