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

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

Posted by Soulskill on Friday October 12, 2012 @07:04AM 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.'"

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...because... by drakaan · 2012-10-12 07:07 · 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 K.+S.+Kyosuke · 2012-10-12 07:55 · Score: 5, Funny
  
  I believe that this kind of judicial decision is called "clouded judgment".
  
  --
  Ezekiel 23:20
Wrong. by theedgeofoblivious · 2012-10-12 07:10 · 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 · 2012-10-12 07:11 · 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 Kenja · 2012-10-12 07:27 · 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?"
3. Re:Wrong. by Chris+Mattern · 2012-10-12 07:40 · 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.
Bad law, not bad judge. by pavon · 2012-10-12 07:17 · 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 Chris+Mattern · 2012-10-12 07:37 · Score: 2
  
  But long-term hosted data are not necessarily backups, and this case, they aren't. Google mail isn't "backing up" anything.
2. Re:Bad law, not bad judge. by Luthair · 2012-10-12 07:41 · Score: 2
  
  How do you know? People could be downloading their email locally but maintaining the copy on the server as backup.
3. Re:Bad law, not bad judge. by TheGratefulNet · 2012-10-12 08:47 · 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."
Leaving Email Online Poses Risks--Regardless by Anonymous Coward · 2012-10-12 07:17 · 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 · 2012-10-12 07:47 · 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.
Hmmm .... by gstoddart · 2012-10-12 07:23 · 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.
Congressional Ineptitude on the subject? by TheGreatDuwanee · 2012-10-12 07:24 · 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!
Courts cannot fix faulty statutes by DRJlaw · 2012-10-12 07:27 · 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 DRJlaw · 2012-10-12 07:44 · 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.
2. Re:Courts cannot fix faulty statutes by DRJlaw · 2012-10-12 08:15 · 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.
3. Re:Courts cannot fix faulty statutes by Terrasque · 2012-10-12 08:36 · 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."
Re:Too late to help that guy .... by Anonymous Coward · 2012-10-12 07:41 · Score: 5, Funny

Mod me -1 Offtopic, but I have to ask: did you mix up the Username and Password fields when you registered?
I'm confused by davidwr · 2012-10-12 08:56 · 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.
Re:Too late to help that guy .... by 140Mandak262Jamuna · 2012-10-12 13:12 · 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.

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sed -e 's/Chuck Norris/Rajnikant/g' joke > fact