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