Slashdot Mirror

← Back to Stories (view on slashdot.org)

S. Carolina Supreme Court: Leaving Email In the Cloud Isn't Electronic Storage

Posted by Soulskill on from the how-do-you-internet dept.

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.'"

78 of 112 comments (clear)

  1. title by 54mc · · Score: 1

    Isn't electronic what?

    --
    Joy! Beautiful spark of the gods!
  2. ...because... by drakaan · · Score: 3, Insightful

    ...the could doesn't use servers, right?

    --
    "Murphy was an optimist" - O'Toole's commentary on Murphy's Law
    1. Re:...because... by Chris+Burke · · Score: 1

      No, it uses water vapor. Duh.

      --

      The enemies of Democracy are
    2. Re:...because... by drakaan · · Score: 1

      damn. C-L-O-U-D...not could. Thanks, autocorrect.

      --
      "Murphy was an optimist" - O'Toole's commentary on Murphy's Law
    3. Re:...because... by K.+S.+Kyosuke · · Score: 5, Funny

      I believe that this kind of judicial decision is called "clouded judgment".

      --
      Ezekiel 23:20
    4. Re:...because... by jaymemaurice · · Score: 1

      Not to rain on your parade, but wit is best served dry.

      --
      120 characters ought to be enough for anyone
    5. Re:...because... by K.+S.+Kyosuke · · Score: 1

      Not to rain on your parade, but wit is best served dry.

      My wit actually deserted me a long time ago. Does that qualify?

      --
      Ezekiel 23:20
    6. Re:...because... by drakaan · · Score: 1

      You're right. I really wanted to blame it on my phone but you called me on my untruth. Well played, AC, well played.

      --
      "Murphy was an optimist" - O'Toole's commentary on Murphy's Law
    7. Re:...because... by Jane+Q.+Public · · Score: 1

      "Ezekiel 23:20"

      Dude... are you REALLY sure you didn't mean Ezekiel 23:19?

      I have struggled mightily with my senses of morals and ethics, for years. Yet I have come to the conclusion that we should build very special bombs, and rain bacon dust down on much of the Middle East, Persia, and parts of Northern Africa.

      Yes, there will be innocents caught in the fallout.

      Perhaps a more reasonable compromise would be to advertise that all American commercial flights will carry 5 pounds of bacon, rigged to vaporize in the event of a catastrophic failure. Thus the "heros" of militant Islam will never get their 72 virgins, or anything else of their version of Heaven, for that matter, and their efforts will not net them the finish they seek.

      Remove the motivation, prevent the act.

      If people want to use religion as a tool of war against us, turnabout is fair play.

    8. Re:...because... by sumdumass · · Score: 1

      All you have to do is convince them that the 72 virgins are perpetual virgins meaning they can never have sex with them. It would be in reality like having 72 twelve year old sisters constantly around.

  3. Wrong. by theedgeofoblivious · · Score: 4, Insightful

    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.

    1. Re:Wrong. by Nutria · · Score: 4, Insightful

      No, the Court decided correctly.

      It's the law (written decades before the concept of web mail) which is archaic.

      --
      "I don't know, therefore Aliens" Wafflebox1
    2. Re:Wrong. by Anonymous Coward · · Score: 1

      The law may be archaic, but it's not really to blame. The law is very specific, and as such it doesn't have a very broad scope: "any temporary, intermediate storage of a wire or electronic communication incidental to the electronic transmission thereof". Clearly that relates to the carriers and providers, and the end user (and any backups they use) are a different topic.

    3. Re:Wrong. by Kenja · · Score: 4, Funny

      Dont be silly, its reality that's wrong.

      --

      "Have you ever thought about just turning off the TV, sitting down with your kids, and hitting them?"
    4. Re:Wrong. by Synerg1y · · Score: 1

      what if the email host provider is THE ONLY place you access your mail from?

    5. Re:Wrong. by Chris+Mattern · · Score: 2

      Doesn't matter. According to the law, it is "electronic storage" only if it is temporary buffers or backups. Another poster has quoted the law verbatim, and it is quite clear, even if it is also amazingly stupid.

    6. Re:Wrong. by RandomFactor · · Score: 1

      So a tomato IS a fruit?

      --
      --- Mercutio was right.
    7. Re:Wrong. by mrbester · · Score: 1

      But not bananas.

      --
      "Wait. Something's happening. It's opening up! My God, it's full of apricots!"
    8. Re:Wrong. by Mike+Buddha · · Score: 1

      This law is not applicable. The law applies to intermediaries and not end points. It's to keep people from sniffing around caches on non-originating and non-recipient machines, and their backups to gain access to someones protected communications.

      The cloud based email service is a communication endpoint and not subject to the law.

      --
      by Mike Buddha -- Someday the mountain might get him, but the law never will.
    9. Re:Wrong. by hairyfeet · · Score: 1

      But you are assuming that they simply don't understand instead of understand and want to give the government a loophole which will all the rulings that seem to go out of their way to let the government ignore even the flimsy rules they have left? is probably not the right call.

      I know all about the saying about malice and stupidity, but when you are dealing with a government that seems to be "Yay jackboots and spying!" no matter who sits in the big chair its probably safer just to assume malice until proven otherwise, that way you'll be more right than wrong.

      --
      ACs don't waste your time replying, your posts are never seen by me.
    10. Re:Wrong. by KDR_11k · · Score: 1

      Considering the duration that's considered "temporary" for copyright law I'd say that anything that won't survive until the heat death of the universe could be considered temporary.

      --
      Justice is the sheep getting arrested while an impartial judge declares the vote void.
    11. Re:Wrong. by jmerlin · · Score: 1

      Incorrect. The court decided to misinterpret the function of copies in the cloud. An SMTP server makes a backup copy of a transmitted electronic messages so that a user can view it at a later time. If the server does not create this backup, the message would simply be lost forever. This is very similar to how phones work: if you answer your phone and walk out of the room, whatever the other person says is lost forever to you. Hence recording machines were invented to allow users who are not present at the time of a phone call to receive a message. The function of the copy made is to be a backup. Both email and phones allow a user to be present at the time of transmission and receive a message, however, it turned out to be useful to implicitly create backups, and so we've come to rely on that behavior. It does not, however, mean that those copies aren't backups. These backups are consistent with what the law says is protected. The court, out of ignorance of the technology, or in willful incompetence, decided that backups aren't backups in this case. They have decided that electronically stored data is not electronically and is not stored. What's next?

    12. Re:Wrong. by jmerlin · · Score: 1

      It covers backups. Copies stored in the cloud are implicit backups.

  4. South Carolina by Anonymous Coward · · Score: 1

    Did that south carolina pageant girl get elected to the state's supreme court?

  5. Electronic Mail not Stored Electronically? by Anonymous Coward · · Score: 1

    And I says what?

  6. Freedom of Contract? by Anonymous Coward · · Score: 1

    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?

  7. Too late to help that guy .... by 140Mandak262Jamuna · · Score: 1
    Remember that guy discovered that the zip code was the password Sarah Palin's yahoo account? Wasn't he jailed or something?

    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
    1. Re:Too late to help that guy .... by 140Mandak262Jamuna · · Score: 1

      This guy: http://en.wikipedia.org/wiki/Sarah_Palin_email_hack

      --
      sed -e 's/Chuck Norris/Rajnikant/g' joke > fact
    2. Re:Too late to help that guy .... by Anonymous Coward · · Score: 5, Funny

      Mod me -1 Offtopic, but I have to ask: did you mix up the Username and Password fields when you registered?

    3. Re:Too late to help that guy .... by 140Mandak262Jamuna · · Score: 2

      au contraire, my friend, that user name is quite carefully chosen. My collegemates will recognize me by my dorm addresses. My fellow alumi would recognize the dorm names and know my college.

      --
      sed -e 's/Chuck Norris/Rajnikant/g' joke > fact
  8. Bad law, not bad judge. by pavon · · Score: 5, Informative

    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.

    1. Re:Bad law, not bad judge. by fredprado · · Score: 1

      Backups are long-term hosted data.

    2. Re:Bad law, not bad judge. by Chris+Mattern · · Score: 2

      But long-term hosted data are not necessarily backups, and this case, they aren't. Google mail isn't "backing up" anything.

    3. Re:Bad law, not bad judge. by Luthair · · Score: 2

      How do you know? People could be downloading their email locally but maintaining the copy on the server as backup.

    4. Re:Bad law, not bad judge. by K.+S.+Kyosuke · · Score: 1

      In that case, the summary is wrong. It should have said "this doesn't qualify as the legal definition of electronic storage per Act XYZ". That this is, in fact, electronic storage to anyone with a brain and some command of English is kind of obvious.

      --
      Ezekiel 23:20
    5. Re:Bad law, not bad judge. by DRJlaw · · Score: 1

      How do you know? People could be downloading their email locally but maintaining the copy on the server as backup.

      But this one was not. From the linked article in the linked article:

      Two Justices -- Justice Hearn, joined by Justice Kittredge -- argued that the Yahoo! e-mails were not in electronic storage because there was no evidence that Jennings had ever downloaded any other copies. Because there were no other copies, the copy stored with Yahoo! could not logically be a backup, as the word âoebackupâ presupposes the existence of another copy.

      We know because the lawyers never made the argument despite the large red flag that was the Theofel v. Farey-Jones decision.

    6. Re:Bad law, not bad judge. by Cid+Highwind · · Score: 1

      Then we're back to the justices being technologically illiterate. The only way a message stored on Yahoo's servers could ever have been read is if another copy is made on the recipient's machine (in his web browser or mail client). If they're not marked as read, they are in transit, and SCA applies. If they are marked as read, then there is (or at least was) a "primary" copy for them to be a "backup" of.

      The copy on Yahoo MUST logically be a backup, because if something that is a backup while the original persists ceases to be a backup the instant the original is deleted (precisely when a backup is needed!) then "backup" as defined is meaningless.

      --
      0 1 - just my two bits
    7. Re:Bad law, not bad judge. by stephanruby · · Score: 1

      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.

      Could you point to the "stupid" part of the definition? I'm just not seeing what you're seeing.

      (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 the purposes of backup protection of such communication.
      [source]

      Also if you notice, you'll see that the South Carolina judges couldn't even agree on one majority opinion of why they ruled that way, so their opinion is not going to be of much help to future courts.

    8. Re:Bad law, not bad judge. by TheGratefulNet · · Score: 2

      no, the court ruled incorrectly.

      the original reason for courts is justice. NOT being a machine and following orders, mindlessly.

      we keep forgetting why they are there. they are there to ensure a more just society.

      following laws by the letter reduces us all to machines.

      I don't think, at all, this was the intention of our body of laws. they were meant to help us encourage good behavior and discourage bad.

      tell me now being a machine and simply parsing words (that were not accurate in their meaning) is 'justice' ?

      I don't buy that the court's reason is to simply parse existing bad laws and derive more bullshit bad laws from it.

      forrest and trees, people. forrest and trees.

      --

      --
      "It is now safe to switch off your computer."
    9. Re:Bad law, not bad judge. by meustrus · · Score: 1

      In that case, the summary is wrong.

      Shocking! This just in: a slashdot summary is wrong/misleading!

      --
      I sometimes ask revealing, often ignorant-seeming questions. Maybe they're harder to answer than you think.
    10. Re:Bad law, not bad judge. by meustrus · · Score: 1

      I don't buy that the court's reason is to simply parse existing bad laws and derive more bullshit bad laws from it.

      The courts aren't supposed to make (derive) laws. The constitutional purpose of the justice system is to clarify laws and set precedents for how they apply in specific situations. Law-making is reserved for elected officials, so that those laws presumably come from citizens. It would be cumbersome and potentially tyrannical for citizens or their elected proxies to pass judgements in individual circumstances; such was the practice in ancient Greece and it's responsible for, among other things, the death of Socrates.

      This is how the US constitution treats the justice system, but I admit that individual states don't have to treat it the same way. South Carolina may well give some legislative authority to its courts. I doubt it, though.

      So what does a court do when it comes across a bad law? It's not the court's responsibility to determine what a "bad law" is. Is it bad because it hurts people? Or is it bad because we think it goes against common sense? Is a bad law one that hurts more people than it helps? Or is a bad law one that hurts us, specifically, everyone else be damned? Usually these concerns are not distinguishable to individual judges. The population is responsible for determining whether it's a bad law, not the court. Therefore the court must uphold the law to the letter, and if the result is bad, let the citizens and the elected officials change it.

      Take the infamous Citizens United case. The Supreme Court justices were completely out of touch with the campaign finance system: the majority opinion expresses incredulity at why corporations might have motives bad for the country, or why allowing individual entities to make huge donations might harm campaign finance in general. Did they rule that corporations are people because that was the letter of the law, or because that was what they believed? If it was the letter of the law, the blame rests solely on the law makers, who may well have intended for corporations to be people. If it was their personal beliefs, however, then the blame rests with the court, which is probably setting precedent against the intent of the law.

      Furthermore, the way to overturn a court decision is to write a new law that supersedes it. If the courts are allowed to create law, what happens when the law makers respond to a court case by making a new law (maybe even a constitutional amendment) that deals with the specific situation in that case? Can the judge simply overturn the new law? Do we want unelected officials to have that authority?

      So yes, the court's reason to exist is to parse existing laws and derive the (bullshit) implications. Don't think you want judges to try and "correct" bad law; you and the judges might vociferously disagree on exactly what makes a "bad law".

      ---

      tl;dr: constitutional law making and judging, what makes a law bad and who says it is, Citizens United, how to fix bad laws; read the last paragraph.

      --
      I sometimes ask revealing, often ignorant-seeming questions. Maybe they're harder to answer than you think.
  9. Leaving Email Online Poses Risks--Regardless by Anonymous Coward · · Score: 4, Informative

    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.

    1. Re:Leaving Email Online Poses Risks--Regardless by Anonymous Coward · · Score: 2, Insightful

      Yes, because the 4th amendment authorizes the government to go after your stuff as soon as it's 180 days old.

      NOT.

      Government is out of control. The only possible reason people don't see this is because they're frighteningly stupid.

  10. "Backup" by Anonymous Coward · · Score: 1

    It is a backup... the other copy of the email is in my brain.

  11. I feel bad for... by fhuglegads · · Score: 1

    ...the person who has to transcribe my emails to paper and type them in when I want to read them.

  12. Hmmm .... by gstoddart · · Score: 2

    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.
  13. Congressional Ineptitude on the subject? by TheGreatDuwanee · · Score: 2

    "...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 ... no telling when the fickle finger of Gate's is gonna point at YOU!
  14. Courts cannot fix faulty statutes by DRJlaw · · Score: 3, Insightful

    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.

    1. Re:Courts cannot fix faulty statutes by whoever57 · · Score: 1

      (B) any storage of such communication by an electronic communication service for purposes of backup protection of such communication;

      So, if I download my email via POP3 or IMAP, and leave a copy on the server, which is the backup? I could argue that the copy on the server is the backup, while my local copy is the primary. What a stupid law to distinguish between backups and original copies!

      --
      The real "Libtards" are the Libertarians!
    2. Re:Courts cannot fix faulty statutes by Luthair · · Score: 1

      It could be ruled unconstitutional.

    3. Re:Courts cannot fix faulty statutes by TheGratefulNet · · Score: 1, Insightful

      the whole CONCEPT is absurd!

      my communication is private. it does not matter where its placed, how long it sits there or how many distributed copies I have.

      STUPID COURTS.

      STUPID LAWS.

      --

      --
      "It is now safe to switch off your computer."
    4. Re:Courts cannot fix faulty statutes by DRJlaw · · Score: 2

      So, if I download my email via POP3 or IMAP, and leave a copy on the server, which is the backup?

      According to the Ninth Circuit, the server copy.

      Defendants point to these cases and argue that messages remaining on an ISP's server after delivery no longer fall within the Act's coverage. But, even if such messages are not within the purview of subsection (A), they do fit comfortably within subsection (B). There is no dispute that messages remaining on NetGate's server after delivery are stored "by an electronic communication service" within the meaning of 18 U.S.C. sec. 2510(17)(B). Cf. DoubleClick, 154 F.Supp.2d at 511 (holding that subsection (B) did not apply because the communications at issue were not being stored by an electronic communication service). The only issue, then, is whether the messages are stored "for purposes of backup protection." 18 U.S.C. sec. 2510(17)(B). We think that, within the ordinary meaning of those terms, they are.

      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.

      Of course, in the present case, the user did not download email by POP3 or IMAP, but used the system purely as webmail.

      What a stupid law to distinguish between backups and original copies!

      Which, as I pointed out in the GP post, is not something that the court is permitted to fix.

    5. Re:Courts cannot fix faulty statutes by DRJlaw · · Score: 1

      It could be ruled unconstitutional.

      On what grounds?

      Authority -- commerce clause; email is predominantly interstate.

      Equal protection -- who does it discriminate against and how does the disparate effect relate to a protected class?

      Other?

      "Unconstitutional" is not a card you can whip out the moment that you disagree with a law...

    6. Re:Courts cannot fix faulty statutes by ScooterComputer · · Score: 1

      The job of judges -IS-, absolutely, to apply the intent of applicable statue to the changing of the times. Clearly, the statute was intended to secure communication while in transit and where it is stored AFTER the traditionally defined (in wiretap terms) concept of "delivery"it was admittedly written in a time where the download and RE-upload of communication for "backup protection" was commonplace. However, technology has shifted; there is no longer the need to download and re-upload, what GETS downloaded is the "transient", temporary state. In wiretap parlance, once a communique is delivered, it is the responsibility of the addressee to henceforth protect it. (Same concept with a physical letter!) In traditional email systems, wiretap would not apply if the Wife had sneakily dug into the MBOX or PST files on the guys computer (because he was responsible for securing those files). But current technology performs both the "backup protection" storage AND viewer task simultaneously; the need for the addressee to take physical possession of the communique is negated.

      These judges muffed it. Clearly, anyone who uses and relies upon web-based (transient) interaction for email purposes is EXPLICITLY relying on the storage of that communication for purposes of backup protection. Otherwise, the providers of the service would just throw it away and save the bits, or never provide a Trash.

      Also, wat gets labeled "judicial activism" is when Judges creatively use legislation to either bolster or deny behavior in tangential and non-intentional ways. Like applying DUI laws to bicycles. Clearly, when the 'D' in DUI stands for "DRIVING", and the code is enforced under MOTOR VEHICLE CODE, being a drunk moron on a bike shouldn't come under that statute.

      --
      Scott
      "Hokey religions and ancient weapons are no match for a good blaster at your side, kid."
    7. Re:Courts cannot fix faulty statutes by mlts · · Score: 1

      It looks like one of the best things to do for E-mail storage so backups are kept "in the cloud", but protected would be to have a large TrueCrypt volume on a box.net or Dropbox drive. In that volume would be someone's archived mail spool info, either the directories from Thunderbird, or PST files from Outlook.

      Of course, contention issues come into play if one wants to access archived mail from multiple machines. Windows does not have a cluster file system (allowing multiple machines to mount the same LUN and use it), Linux has GFS2, and BSD/Solaris, clustering is built into ZFS so multiple boxes can mount a TC volume without getting in each other's way. Of course, then comes the application issues... I'm sure MS didn't design Outlook to be able to deal with multiple instances accessing the same PST at the same time.

      If this was really a concern, probably the best answer would be to run your own mailserver with its own SSL key, encrypted hard disks, third party SMTP relay (to get around the dynamic IP blocks), and DynDNS functionality.

    8. Re:Courts cannot fix faulty statutes by Luthair · · Score: 1

      You misunderstand, I was simply pointing out that the court has the power to invalidate if they feel its unconstitutional.

    9. Re:Courts cannot fix faulty statutes by fynfuqbg · · Score: 1

      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.

      Of course, in the present case, the user did not download email by POP3 or IMAP, but used the system purely as webmail.

      To read his email the user has to download it with his webbrowser. If he wants to read his email again the browser will show the version kept in its local cahe. The copy kept by the webmail provider is clearly a back-up for the copy kept in the local cache of his webbrowser.

    10. Re:Courts cannot fix faulty statutes by DRJlaw · · Score: 2

      The job of judges -IS-, absolutely, to apply the intent of applicable statue to the changing of the times.

      Yeah... the absolutely part... no attorney who has studied constitutional law is going to buy that. The "living constitution" (and analogous "living statute") theory of legal interpretation is one of many, and is quite open to philosophical debate.

      You're also going to have a hard time convincing many people that the "intent of [the] applicable statute" evolves over time in an undefined way rather than being fixed by the legislature that enacted the law. That is sort of mushiness that the strict constructionists are rejecting -- rather they argue that a circumstance either fits within the text or it does not. Then you have the "originalists" who think that regadless of the breadth of the text, you only implement the intent of the enacting legislature that fits within it.

      It's a continuum, and to claim that the judges miffed it you must claim, as you apparently do, that no method of interpretation could possibly be right except for yours. The problem is, that claim is ridiculous on its face.

    11. Re:Courts cannot fix faulty statutes by Bucc5062 · · Score: 1

      So I guess this action would also fall under the "your kidding" option or how does one drive a horse. Perhaps they should change the law to just OUI (easy to suss out).

      --
      Life is a great ride, the vehicle doesn't matter
    12. Re:Courts cannot fix faulty statutes by Terrasque · · Score: 2

      That is .. very silly indeed.

      It's a bit like defining a home as where you sleep, and further defining that the only thing that thus needs warrant to search is your bed mattress and blankets.

      Or define vehicle as "Ferrari, horse, horse wagon and steam wagon".

      Or maybe define the president as whoever sits in the president's chair in the oval office...

      Whoever wrote those "laws" are crazy, and should be in a mental hospital somewhere, not writing .... that stuff. *sigh*

      --
      It's The Golden Rule: "He who has the gold makes the rules."
    13. Re:Courts cannot fix faulty statutes by blade8086 · · Score: 1

      If you have to download every message to read it (or to view the subject), and then delete this copy when you close your browser tab,
      guess what - the server copy just became a backup of what you had stored on your computer while you were reading it.

      Also - how many people keep their email in yahoo mail 'because they would rather have it there as a backup'
      than to 'have it on their own device where they could lose the data' ?

      If you have a badly implemented backup policy, where does your *intent* to have it *be* a backup enter into the equation?

      Or are the courts going to start deciding our backup policies for us?

      you sir, are wrong, and playing phony (not legitimate) legalese and word games, just like the court did here.

    14. Re:Courts cannot fix faulty statutes by jmerlin · · Score: 1

      I think we must conclude that this court was horribly mistaken in both its understanding of what this text says (poor interpretation) and in what the "copy" in the cloud represents (poor understanding of technology). Consider, for a moment, the telephone. One would not argue that this definition of "backups" clearly applies to the use of a recording device to record a telephone conversation. Now what happens if one end simply enables a recording device, leaves the room, and comes back in 20 minutes when it is certain that the other party has terminated the connection? The message being sent electronically through the phone lines was not received by one party, but is stored. What is the purpose of that storage? Why would someone leave the room? What if they simply answered the phone, said "I'm not here right now," and then left the room? What if, instead of a person, it was actually a device that simply waited for N rings, then answered the phone, and told the person on the other line that nobody is present to answer the phone, and activates a recording device? We've moved, very basically and very incrementally from a normal phone conversation in which a recording is VERY CLEARLY a backup as this law states, to a position IDENTICAL TO CLOUD EMAIL STORAGE which is used EVERY DAY BY MILLIONS OF PEOPLE. They're called answering machines.

      What is the purpose of the recording made by an answering machine? It is very obvious to anyone who's ever used a phone -- it allows a person to communicate a message, have it backed up for later use or review. The recording made by an answering machine IS A BACKUP. If it did not enable the recording device, and it did not need to, the copy transmitted over the wire would be, and this is the important part, LOST FOREVER AND UNRECOVERABLE. It is very obvious, then, that the recording is an implicit backup so that the absent party can later review the message.

      Now consider SMTP. SMTP is the protocol used to send electronic mail. An SMTP client connects to an SMTP server over TCP (think of this like ringing a phone, the other end has to answer, and then you're connected). Then, using this protocol on top of TCP (think phone-line), a message (email) is transmitted from the sender to the receiver. The receiver can choose to discard this message, as in fact, it only reads the message into memory. If a user is present on the SMTP server, he/she can see the message transmitted over the connection as it occurs. But again, if that user is not present, a backup must be made so that he/she may at a later, more convenient time, access the message that was transmitted in his/her absence. This is identical to the answering machine. Electronic mail storage, even as a fundamental part of accessing electronic mail, is a glorified answering machine, and electronic mail is just a super high-speed, highly-efficient, yet glorified phone call.

      IANAL, and IANAJ, but IASWE. My job, all day, every day, is to read specifications and implement specifications. I feel I can make a judgement here as an expert. Any mail stored as a "copy" in the cloud is a backup, implicitly, for protection against immediate loss, so that a user can later access the mail without being present at the time of its transmission. It therefore fits the definition present in the letter of the law. I find it incredibly unnerving that such an obvious and logical conclusion has eluded the court.

  15. Email is not primarily communication by presidenteloco · · Score: 1

    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?
  16. Being from South Carolina by GodfatherofSoul · · Score: 1

    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!
  17. It's just a formality by erroneus · · Score: 1

    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.

    1. Re:It's just a formality by JDG1980 · · Score: 1

      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.

      No, it is not just a formality. They may have it anyway, but they can't use it as evidence in court if it is illegally obtained.

    2. Re:It's just a formality by erroneus · · Score: 1

      I guess you;ve never heard od the other end-runs they pull off. "Enemy combatant" is a buzz word they use to strip anyone and everyone of constitutional guarantees and even of "human rights." They don't need law or trials or anything to 'disappear' people.

      Before anything gets done about it, we have to start acknowleding what we see. And most of it is in plain sight.

    3. Re:It's just a formality by erroneus · · Score: 1

      Did you miss the part where the occupy movement has been listed as low level terrorists?

    4. Re:It's just a formality by erroneus · · Score: 1

      Then I guess the average St. Patrick's Day parade participants and spectators are also low level terrorists... and let's not talk about sports fans. There have been actual riots associated with sporting events.

      Get some perspective. The occupy movement is about protesting the current balance of power and wealth. It's not healthy, has lead to the problems we are seeing today and inhibits the notion that there is any equality in the rule of law.

  18. I'm confused by davidwr · · Score: 2

    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.
  19. "I don't bother downloading every email I receive" by John+Hasler · · Score: 1

    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.
  20. I think I would appeal that. by aklinux · · Score: 1

    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.

  21. Check yo jurisdiction by guimus · · Score: 1

    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.

  22. Re:POP vs IMAP by Mabhatter · · Score: 1

    That might be the quickest way to get action on this! After all, most companies use Exchange (IMAP). So what you are saying is that anybody running IMAP is not "really" reading emails, so corporate emails don't need subpoenas or warrants!

  23. Re:MegaUpload by CanEHdian · · Score: 1

    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?

    Of course the ELECTRONIC data was STORED on MegaUpload... how else were copyrights infringed upon?!

    Let me spill the beans on Dotcom's new revived version: KimsMegaMail!

    You send an e-mail with attachment to mega@kimsmegamail.com, you get a confirmation email back from say eZf9vvwPrK23z@kimsmegamail.com. You give this e-mail address to your friend, post it online, etc. Everyone that sends an e-mail to that address, gets an e-mail back with that same attachment. On a premium account this is forever, free accounts for 30 days after the last activity.

    The servers are OK and protected from the RIAA/MPAA's talons as they do not "store" anything.

    --
    When the copyright term is "forever minus a day", live every day like it's the last.
  24. We are a nation of retards by gelfling · · Score: 1

    Give up, close it all down, we're done. Let's go kill ourselves.

  25. herp by Legion303 · · Score: 1

    derp.

  26. But.. by formfeed · · Score: 1

    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?