The Stored Communications Act (SCA) does not protect against unauthorized...

a man’s Yahoo email account that was accessed without his permission by his wife’s daughter-in-law after he admitted to his wife that he had been communicating with an extramarital romantic interest via email. The court had “misunderstood the definition of electronic storage under the Act and incorrectly concluded that the emails had been stored for the purpose of backup protection,” Hearn wrote. To be protected by the SCA, she said, the emails would have to be in “temporary, intermediate storage” and “for the purposes of backup protection,” although she noted that most courts only require it to meet one of those factors. Citing the Merriam-Webster Dictionary’s definition for “backup” -- “one that serves as a substitute or support” -- Hearn rejected the idea that “retaining an opened email constitutes storing it for backup protection under the Act.” “As the single copy of the communication,” she wrote, the man’s emails “could not have been stored for backup protection.” Because the emails did not fit the definition of electronic storage set forth by the act, the SCA does not apply, Hearn wrote, saying the ruling “should in no way be read as condoning [the daughter-in-law’s] behavior.” Chief Justice Jean Toal wrote an opinion concurring with the results of Hearn’s opinion but disagreeing with its interpretation of the SCA and arguing that “electronic storage” includes content in “temporary, intermediate storage” and “for the purposes of backup protection.” Focusing on the “temporary, intermediate” language of the law, Toal wrote, “if an email has been received by a recipient’s service provider but has not yet been opened by the recipient, it is in electronic storage. ... When the recipient opens the email, however, the communication reaches its final destination,” and any “retained copy is no longer in electronic storage because it is no longer in ’temporary, intermediate storage.'” Toal partially attributed the difficulty of applying the law to changes in technology that have happened since the SCA was enacted in 1986. “The SCA is ill-fitted to address many modern day issues,” she wrote, “but it is the Court’s duty to interpret, not legislate.” Justice Donald Beatty concurred with Toal’s opinion. Justice Costa Pleicones wrote a brief opinion concurring in result with Hearn but stating that the definition for electronic storage should include anything that meets either the “temporary, intermediate” or the “for the purposes of backup” qualifications.