Jennings v. Jennings
--- S.E.2d ----, 2012 WL 4808545
South Carolina Supreme Ct.
October 10, 2012
Justice HEARN.
*1
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.
FACTUAL/PROCEDURAL BACKGROUND
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.FN1
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 e-mails and gave them to Thomas Neal,
Gail's attorney in the divorce proceedings, and Brenda Cooke, a private
investigator Gail hired.
FN1. Broome is married to Gail's son from a previous marriage.
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
e-mails 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.
ISSUE PRESENTED
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? FN2
FN2. The definitions of section 2510 pertaining to the Wiretap Act are incorporated into the SCA. 18 U.S.C § 2711(1).
LAW/ANALYSIS
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).
(1) intentionally accesses without authorization a facility through which an electronic communication service is provided; or
and
thereby obtains, alters, or prevents authorized access to a wire or
electronic communication while it is in electronic storage in such
system shall be punished as provided in subsection (b) of this section.
18 U.S.C. § 2701(a). This section thus proscribes the unauthorized accessing of an electronic communication while it is in “electronic storage.” The SCA defines “electronic storage” as “(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.” 18 U.S.C. § 2510(17). For Jennings to succeed in his claim against Broome under the SCA, he must prove the e-mails she accessed were in electronic storage as defined in section 2510(17). His argument in this regard extends only to subsection (B) of the Act; Jennings has never argued that the e-mails in questions were in electronic storage pursuant to subsection (A).
The
court of appeals agreed with Jennings and held the e-mails were in
“electronic storage” because they were stored for backup protection
pursuant to subsection (B). Broome argues this conclusion was based upon
an improper interpretation of section 2510(17),
asserting that the definition of “electronic storage” within the SCA
requires that it must be both temporary and intermediate storage
incident to transmission of the communication
and storage for the purposes of backup protection. She therefore
contends that an e-mail must meet both subsection (A) and subsection (B)
to be covered by the SCA. We acknowledge that this reading is the
interpretation espoused by the Department of Justice as the “traditional
interpretation” of section 2510(17).
However, it has been rejected by the majority of courts in favor of a
construction that an e-mail can be in electronic storage if it meets
either (A)
or (B).
See, e.g.,
Theofel v. Farey–Jones, 359 F .3d 1066, 1075 (9th Cir.2004);
Fraser v. Nationwide Mut. Ins. Co., 352 F.3d 107, 114 (3d Cir.2003),
aff'g in part, vacating in part, and remanding 135 F.Supp.2d 623 (E.D.Pa.2001);
Strategic Wealth Group, LLC v. Canno, No. 10–0321, 2011 WL 346592, at *3–4 (E.D.Pa. Feb. 4, 2011);
Cornerstone Consultants, Inc. v. Prod. Input Solutions, LLC, 789 F.Supp.2d 1029, 1055 (N.D.Iowa 2011);
Shefts v. Petrakis, No. 10–cv–1104, 2011 WL 5930469, at *5 (C.D.Ill. Nov. 29, 2011);
Crispin v. Christian Audigier, Inc., 717 F.Supp.2d 965, 983 (CD.Cal.2010);
U.S. v. Weaver, 636 F.Supp.2d 768, 771 (C.D.Ill.2009);
Flagg v. City of Detroit, 252 F.R.D. 346, 362 (E.D.Mich.2008).
Because Jennings has only argued his e-mails were in electronic storage
pursuant to subsection (B), it is unnecessary for us to determine
whether to adopt the traditional interpretation advocated by the
Department of Justice or the interpretation recognized by these cases.
See
McCall v. Finley, 294 S.C 1, 4, 362 S.E.2d 26, 28 (Ct.App.1987) (“[W]hatever doesn't make any difference, doesn't matter.”).
*3
In finding
the e-mails were stored for “purposes of backup protection” and thus
subject to subsection (B), the court of appeals relied heavily on
Theofel, a case from the United States Court of Appeals for the Ninth Circuit. In
Theofel, Integrated Capital Associates (ICA) was involved in commercial litigation with Farey–Jones.
Theofel, 359 F.3d at 1071. Counsel for Farey–Jones subpoenaed
ICA's internet service provider, NetGate, for the production of all
e-mails sent or received by anyone at ICA “with no limitation as to time
or scope.”
Id. NetGate complied as well as it could with such a voluminous
request, but when ICA discovered this disclosure it filed a motion to
quash the subpoena and requested the imposition of sanctions.
Id. Additionally, several of the employees whose e-mails had been delivered by NetGate filed a civil suit against Farey–Jones for,
inter alia, violations of the SCA in gaining unauthorized access to communications in electronic storage.
Id The court in
Theofel held that ICA's e-mails which had been received and read,
and then left on the server instead of being deleted, could be
characterized as being stored “for purposes of backup protection” and
therefore kept in electronic storage under subsection (B).
Id . at 1075. We question the reasoning expressed in
Theofel that such passive inaction can constitute storage for
backup protection under the SCA; however, because we believe the plain
language of subsection (B) does not apply to the e-mails in question, we
reverse the conclusion of the court of appeals that they were in
electronic storage under
Theofel.
After
opening them, Jennings left the single copies of his e-mails on the
Yahoo! server and apparently did not download them or save another copy
of them in any other location. We decline to hold that retaining an
opened email constitutes storing it for backup protection under the Act.
The ordinary meaning of the word “backup” is “one that serves as a
substitute or support.” Merriam–Webster Dictionary,
http://www.merriam-webster.com/dictionary/backup. Thus,
Congress's use of “backup” necessarily presupposes the existence of
another copy to which this e-mail would serve as a substitute or
support. We see no reason to deviate from the plain, everyday meaning of
the word “backup,” and conclude that as the single copy of the
communication, Jennings' e-mails could not have been stored for backup
protection.
Accordingly,
we find these e-mails were not in electronic storage. We emphasize that
although we reject the contention that Broome's actions give rise to a
claim under the SCA, this should in no way be read as condoning her
behavior. Instead, we only hold that she is not liable under the SCA
because the e-mails in question do not meet the definition of
“electronic storage” under the Act.
CONCLUSION
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.
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