Jennings v. Jennings

736 S.E.2d 242, 401 S.C. 1, 2012 WL 4808545, 2012 S.C. LEXIS 204

• Court: Supreme Court of South Carolina
• Decided: October 10, 2012
• Docket: No. 27177
• Status: Published

Opinions

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 emails she obtained from hacking Jennings’ account were in electronic storage and thus covered by the SCA. We reverse.

FACTUAL/PROCEDXJRAL 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.¹ 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.

When Jennings discovered his e-mail account had been hacked, he filed suit against Gail, Broome, and Cooke, individually and as shareholder of B JR International Detective Agency, Inc., for invasion of privacy, conspiracy, and violations of the South Carolina Homeland Security Act, South Carolina Code Ann. § 17-80-135 (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 (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? ²

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).

Under section 2701(a) of the SCA, anyone who:

(1) intentionally accesses without authorization a facility through which an electronic communication service is provided; or

(2) intentionally exceeds an authorization to access that facility;

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 emails 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), affg 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 (C.D.Cal.2010); U.S. v. Weaver, 636 F.Supp.2d 769, 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) (“[WJhatever doesn’t make any difference, doesn’t matter.”).

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 emails 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’ emails 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.

1 . Broome is married to Gail's son from a previous marriage.

2 . The definitions of section 2510 pertaining to the Wiretap Act are incorporated into the SCA. 18 U.S.C § 2711(1).