By Ezra Brook (Click here for all articles by this author)
Oct. 17, 2012

The South Carolina Supreme Court Says Hacking Email Accounts is Fine. Do you Agree?

Note: Decision link is found at the bottom of this post

The South Carolina (SC) Supreme Court has ruled that email stored in public email service providing companies, like Google, Yahoo, Hotmail and other similar web-based email services are not considered as “Electronic Storage”. And as a result, the SC court says, such emails are not protected by the “Stored Communications Act” (SCA).

The ruling was in the case M. Lee Jennings Vs. Gail M. Jennings, Holly Broom, Brenda Cooke, International Detective Agency Inc. for hacking into M. Lee Jennings’ Yahoo email account.

In the past, the same court ruled that emails at issue were in “electronic storage”, thus protected under the SCA. However, this week, the ruling has been reversed. The defendants had successfully reasoned with the judges, that “the court had misunderstood the definition of “electronic storage” under the Act and incorrectly concluded the e-mails had been stored for the purpose of backup protection”.

I personally don’t delete my important emails so that I get to see them whenever I need to. That means, I am using my opened emails as backups of the communications I received. Whether temporary, or long term backups, I keep my important emails in my inbox. Some of my opened emails go back as far as 10 years.

The United States code under the SCA (Stored Communications Act) defines “electronic storage” in section 2510 (17) as follows:

(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 conclusion by the courts is that electronic emails do not fall under the above definition.

Now we know what the codes say about electronic storage. How do you define backup? How do courts define backup? I am not a lawyer, but I believe defining these terms won’t be too difficult. But, by focusing on definitions of terms written long time ago, someone who hacked an email account has gotten away with it. So, is there an alternate remedy? What is the option left for M. Lee Jennings now? Can he sue the hacker(s) under a different code? Perhaps, the “Computer Fraud and Abuse Act”? If you are a lawyer, please enlighten us.

If you have a very sensitive communication, consider signing up with self-destructing email service providers. Such emails will expire at pre-set time or after a number of views.

Here is the Decision:

JUSTICE HEARN: Holly Broome was sued civilly for hacking Lee Jennings’ Yahoo! e-mail account. The circuit court granted summary judgment in favor of Broome on all claims, including violation of the federal Stored Communications Act (SCA), 18 U.S.C. §§ 2701-12. The court of appeals reversed, finding that the e-mails she obtained from hacking Jennings’ account were in electronic storage and thus covered by the SCA. We reverse.

The computer hacking at issue here emanated from a domestic dispute. After finding a card for flowers for another woman in her husband’s car, Gail Jennings confronted him. Jennings confessed he had fallen in love with someone else, and although he refused to divulge her name, he admitted the two had been corresponding via e-mail for some time. Gail confided this situation to her daughter-in-law, Holly Broome [Broome is married to Gail's son from a previous marriage].

Broome had previously worked for Jennings and knew he maintained a personal Yahoo! e-mail account. She thereafter accessed his account by guessing the correct answers to his security questions and read the e-mails exchanged between Jennings and his paramour. Broome then printed out copies of the incriminating emails and gave them to Thomas Neal, Gail’s attorney in the divorce proceedings, and Brenda Cooke, a private investigator Gail hired.

When Jennings discovered his e-mail account had been hacked, he filed suit against Gail, Broome, and Cooke, individually and as shareholder of BJR International Detective Agency, Inc., for invasion of privacy, conspiracy, and violations of the South Carolina Homeland Security Act, South Carolina Code Ann. § 17-30-135 (2010). He later amended his complaint to include an allegation that the defendants violated the SCA. Jennings also moved to add Neal as a defendant. The circuit court denied this motion and granted summary judgment in favor of the defendants on all claims, including the allegations under the SCA. Jennings appealed. The court of appeals affirmed the grant of summary judgment as to Gail, Cooke, and BJR. Jennings v. Jennings, 389 S.C. 190, 209, 697 S.E.2d 671, 681 (Ct. App. 2010).

However, the court reversed the circuit court’s grant of summary judgment in favor of Broome only as to the SCA claim, finding that the emails at issue were in “electronic storage” as defined in 18 U.S.C. § 2510(17). Id. at 198-208, 697 S.E.2d at 675-680. We granted certiorari.

Did the court of appeals err in reversing the circuit court’s grant of summary judgment because the e-mails in question were not in “electronic storage” as defined by 18 U.S.C. § 2510? [The definitions of section 2510 pertaining to the Wiretap Act are incorporated into the SCA. 18 U.S.C § 2711(1)]

In arguing the court of appeals erred by holding the e-mails were in electronic storage, Broome contends the court misunderstood the definition of electronic storage under the Act and incorrectly concluded the e-mails had been stored for the purpose of backup protection. We agree.

“Determining the proper interpretation of a statute is a question of law, and this Court reviews questions of law de novo.” Town of Summerville v. City of N. Charleston, 378 S.C. 107, 110, 662 S.E.2d 40, 41 (2008).

“Statutory construction must begin with the language of the statute.” Kofa v. U.S. Immigration & Naturalization Serv., 60 F.3d 1084, 1088 (4th Cir. 1995). “In interpreting statutory language, words are generally given their common and ordinary meaning.” Nat’l Coal. for Students with Disabilities Educ. & Legal Def. Fund v. Allen, 152 F.3d 283, 288 (4th Cir. 1998). Where the language of the statute is unambiguous, the Court’s inquiry is over, and the statute must be applied according to its plain meaning. Hall v. McCoy, 89 F. Supp. 2d 742, 745 (W.D. Va. 2000).


Based on the foregoing, we reverse the court of appeals’ opinion and reinstate the circuit court’s order granting summary judgment in favor of Broome.

KITTREDGE, J., concurs. TOAL, C.J., concurring in result in a separate opinion in which BEATTY, J., concurs. PLEICONES, J., concurring in result in a separate opinion.

Click here to view the full ruling [PDF file, 14 pages]

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