Jennings v. Jennings

I concur in result, but write separately to express my concern with Justice Hearn’s adoption of the approach taken in United States v. Weaver, 636 F.Supp.2d 769 (C.D.Ill.2009). I believe the “traditional interpretation” of the Stored Communications Act (SCA), 18 U.S.C. §§ 2701-12 (2000 & Supp. 2011), advanced by the Department of Justice (DOJ), coupled with the fact that Congress never contemplated this new form of technology, provide a sounder basis to reach our decision.

*8In Weaver, the court addressed the government’s subpoena of e-mails in a defendant’s Hotmail account and whether the emails were in “electronic storage,” a determination which would dictate whether the government would need to obtain a warrant for the e-mails or whether a trial subpoena was sufficient. 636 F.Supp.2d at 769-71. Weaver held that courts may issue a trial subpoena to compel internet service providers (ISPs) to produce the content of opened e-mails stored by a website provider for 180 days or fewer because such e-mails are not in “electronic storage.” Id. at 771-73. Weaver relied on dicta found in Theofel v. Farey-Jones, 359 F.3d 1066 (9th Cir.2004), to conclude that Theofel’s holding applies only to email systems where users download messages from the ISP’s server onto their computers, and that e-mails stored in the cloud should not be considered stored for backup purposes. Id. at 772. Similar to Weaver, Justice Hearn concludes here that because Jennings left his e-mails on the Yahoo! Server and apparently did not download them from the server or retain a copy of them in any other location, the emails could not be held for “backup protection” within the meaning of the statute.

Justice Hearn relies on the Merriam-Webster Dictionary to argue that the definition of “backup” requires that there must be more than one copy of the email. The exact definition of “backup” varies from dictionary to dictionary. See, e.g., Webster’s Third International Dictionary, Unabridged 120 (3rd ed.2002). Assuming for the sake of analysis that the definition of “backup” is “one that serves as a substitute or support,” as Justice Hearn contends, this definition would suggest that an email message on an ISP’s server could be stored for support in the event that the user needs to retrieve it. As such, even if there is no second copy, the email could still constitute “backup protection.”

Nevertheless, even if I could interpret “backup” in this matter, in a statute such as this, I am reluctant to read the word “backup” in isolation, but instead the phrase “backup protection” should be viewed in a statutory and historical context. As Professor Kerr explains:

An understanding of the structure of the SCA indicates that the backup provision of the definition of electronic storage, see id. § 2510(17)(B), exists only to ensure that the govern*9ment cannot make an end-run around the privacy-protecting ECS rules by attempting to access backup copies of unopened e-mails made by the ISP for its administrative purposes. ISPs regularly generate backup copies of their servers in the event of a server crash or other problem, and they often store these copies for the long term. Section 2510(17)(B) provides that backup copies of unopened e-mails are protected by the ECS....

There are many statutory signals that support this reading. Several were raised by the United States as amicus and rejected by the Theofel court, see Theofel, 359 F.3d at 1076-77, but a host of other arguments remain. I think the most obvious statutory signal is the text of 18 U.S.C. § 2704, entitled “Backup Preservation.” See 18 U.S.C. § 2704 (2000). Section 2704 makes clear that the SCA uses the phrase “backup copy” in a very technical way to mean a copy made by the service provider for administrative purposes. See id. The statutory focus on backup copies in the SCA was likely inspired by the 1985 Office of Technology Assessment report that had helped inspire the passage of the SCA. See Office of Tech. Assessment, Federal Government Information Technology: Electronic Surveillance and Civil Liberties (1985). The report highlighted the special privacy threats raised by backup copies, which the report referred to as copies “[rjetained by the [ejlectronic [mjail [cjompany for [ajdministrative [pjurposes.” Id. at 50.

Orin Kerr, A User’s Guide to the Stored Communications Act, and a Legislator’s Guide to Amending It, 72 Geo. Wash. L.Rev. 1208, 1217 n. 61 (2004); see also Pure Power Boot Camp v. Warrior Fitness Boot Camp, 587 F.Supp.2d 548, 555 (S.D.N.Y.2008) (“The majority of courts which have addressed the issue have determined that e-mail stored on an electronic communication service provider’s systems after it has been delivered, as opposed to e-mail stored on personal computer, is a stored communication subject to the SCA.”) (citations omitted).

Furthermore, I am concerned that Justice Hearn’s position on “backup protection” potentially leads to illogical results. Weaver, itself, concluded that the outcome would be different if a Hotmail user “opt[edj to connect an e-mail program, such as Microsoft Outlook, to his or her Hotmail account and *10through it downloaded] messages onto a personal computer.” Id. Under Weaver’s rule, the privacy protections of personal email are contingent upon the operation of the e-mail system used.3 It is not necessary for this Court to rely on Theofel dicta, which would lead us down the precarious path of saying that if one uses Microsoft Outlook for e-mail, one will be protected, but if one uses Yahoo! Mail for e-mail, there is no protection. Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 575, 102 S.Ct. 3245, 3252, 73 L.Ed.2d 973 (1982) (holding “interpretations of a statute which would produce absurd results are to be avoided if alternative interpretations consistent with the legislative purpose are available.”); see also Hodges v. Rainey, 341 S.C. 79, 91, 533 S.E.2d 578, 584 (2000) (citation omitted) (“However plain the ordinary meaning of the words used in a statute may be, the courts will reject that meaning when to accept it would lead to a result so plainly absurd that it could not possibly have been intended by the Legislature.... ”).

Instead, I advocate a rejection of Theofel entirely and the adoption of the “traditional interpretation” of the SCA, which tracks the statutory language and comports with legislative history. Prosecuting Computer Crimes, DOJML Comment 9-3.000, 5 Department of Justice Manual (Supp.2011-13) [hereinafter DOJML Comment 9-3.000]; see also Kerr, supra, at *111216-18 (advocating the traditional approach and arguing that “the Ninth Circuit’s analysis in [Theofel ] is quite implausible and hard to square with the statutory text”). Under this approach, the term “electronic storage” has a narrow, statutorily defined meaning. DOJML Comment 9-3.000. It does not simply mean storage of information by electronic means. Rather section 2510(17) provides:

(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;

18 U.S.C. § 2510(17) (Supp.2011) (emphasis added).

I disagree with Justice Hearn’s position that an e-mail is covered under section 2701(a) of the SCA if it meets the criteria of “either subsection (A) or subsection (B).” (emphasis in original). Plainly read, the definition of electronic storage encompasses both subsections A and B. I do not rely on Broome’s over-analysis of the word “such” in the phrase “such communication” to reach this conclusion. Rather, I turn to the structure of the statutory text and also to the unambiguous use of the conjunctive “and.” Both subsections A and B are subsumed under section 17, which starts out with the phrase “ ‘electronic storage’ means — ,” suggesting that the definition of electronic storage encompasses both subsections A and B. Furthermore, subsections A and B are connected by the conjunctive “and” indicating that they must be read together. See Bruesewitz v. Wyeth LLC, 562 U.S. -, 131 S.Ct. 1068, 1078, 179 L.Ed.2d 1 (2011) (noting that “linking independent ideas is the job of a coordinating junction like ‘and’ ”). Had Congress intended two alternative definitions for electronic storage then it would have used the disjunctive particle “or” in place of “and.” See, e.g., Reiter v. Sonotone Corp., 442 U.S. 330, 339, 99 S.Ct. 2326, 2331, 60 L.Ed.2d 931 (1979) (“Canons of construction ordinarily suggest that terms connected by a disjunctive be given separate meanings, unless the context dictates otherwise.”); K & A Acquisition Group, LLC v. Island Pointe, LLC, 383 S.C. 563, 580, 682 S.E.2d 252, *12261 (2009) (The “use of the word ‘or’ in a statute ‘is a disjunctive particle that marks an alternative.’ ”). Justice Hearn’s approach would delete a word and insert a new one into the statutory text, effectively writing out subsection A from the definition of electronic storage.

Thus, in my view, electronic storage refers only to temporary storage, made in the course of transmission, by an ECS provider, and to backups of such intermediate communications. Under this interpretation, if an e-mail has been received by a recipient’s service provider but has not yet been opened by the recipient, it is in electronic storage. Steve Jackson Games, Inc. v. United States Secret Serv., 36 F.3d 457, 461 (5th Cir.1994) (holding that e-mail which had been sent to a bulletin board but not read by intended recipients was “in ‘electronic storage’ ”). When the recipient opens the e-mail, however, the communication reaches its final destination. DOJML Comment 9-3.000. If the recipient chooses to retain a copy of the e-mail on the service provider’s system, the retained copy is no longer in electronic storage because it is no longer in “temporary, intermediate storage ... incidental to ... electronic transmission.” Fraser v. Nationwide Mut. Ins. Co., 135 F.Supp.2d 623, 635-36 (E.D.Pa.2001), affd in part 352 F.3d 107, 114 (3d Cir.2004) (upholding district court’s ruling on other grounds); In re Doubleclick Inc. Privacy Litigation, 154 F.Supp.2d 497, 511-13 (S.D.N.Y.2001) (emphasizing that electronic storage should have a narrow interpretation based on statutory language and legislative intent and holding that cookies fall outside of the definition of electronic storage because of their “long-term residence on plaintiffs’ hard drives”).

In this case, the circuit court judge found that the e-mails were “received, opened and read by [Jennings].... ” Because the e-mails were already opened by Jennings when they were retrieved and printed out by Broome, they reached their final destination and fell outside the scope of the definition of electronic storage under the statute, which requires the emails to be in “temporary, intermediate storage ... incidental to the electronic transmission thereof.” 18 U.S.C. § 2510(17).

Much of the difficulty in applying the SCA to cases such as this arises because of the discrepancy between current tech*13nology and the technology available in 1986 when the SCA was first enacted. When the SCA was enacted, the process of network communication was still in its infancy; the World Wide Web, and the Internet as we know it, did not arrive until 1990. William Jeremy Robison, Free At What Cost?: Cloud Computing Privacy Under the Stored Communications Act, 98 Geo. L.J. 1195, 1198 (2010). An examination of how the Senate viewed e-mails in 1986 indicates just how strikingly different the technology was compared to the present:

Electronic mail is a form of communication by which private correspondence is transmitted over public and private telephone lines. In its most common form, messages are typed into a computer terminal, and then transmitted over telephone lines to a recipient computer operated by an electronic mail company. If the intended addressee subscribes to the service, the message is stored by the company’s computer “mail box” until the subscriber calls the company to retrieve its mail, which is then routed over the telephone system to the recipient’s computer. If the addressee is not a subscriber to the service, the electronic mail company can put the message onto paper and then deposit it in the normal postal system.

S.Rep. No. 99-541, at 7 (1986). Viewing the statutory language of the SCA in this context, the traditional definition of electronic storage becomes more reasonable. The SCA is ill-fitted to address many modern day issues, but it is this Court’s duty to interpret, not legislate. Moreover, I agree with Justice Hearn that it is prudent to limit our analysis to the language before us and give the language its literal meaning. However, I believe doing so requires us to adopt the traditional interpretation of 18 U.S.C. § 2510(17) rather than rely on the reasoning advanced by United States v. Weaver. 636 F.Supp.2d at 769-73. Jennings and similarly situated plaintiffs are not foreclosed from seeking redress by alternative theories, but under the SCA, Broome’s actions do not give rise to a claim because the e-mails in question do not meet the definition of electronic storage.