In the US, the South Carolina Supreme Court has decreed that email stored in Google, Yahoo or any other web service isn’t “electronic storage” and therefore isn’t protected by the Stored Communications Act.
In a decision handed down on Wednesday, the court said [PDF]) that a man who sued over a woman hacking into his Yahoo Mail account is out of luck, given that his email doesn’t constitute a backup and wasn’t created by his ISP for the purpose of creating a duplicate file.
Hence, his email doesn’t warrant protection under the SCA, which under the United States Code 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.
Justices Kaye G. Hearn and John W. Kittredge wrote that because the man, respondent Lee Jennings, had no other copies of his Yahoo email, they couldn't possibly constitute a backup as outlined in clause B.
The two judges wrote:
"We decline to hold that retaining an opened e-mail 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.' 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."
For her part, Chief Justice Jean Hoefer Toal, with Justice Donald Beatty concurring, said that Jennings' email stopped being a 'backup' after its recipient opened them:
"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."
The case came about after Jennings' wife, Gail, found a card for flowers for Jennings' paramour in his car. When Gail confronted him, he confessed he had fallen in love with another woman.
Jennings refused to identify his lover but admitted they had been corresponding via email for some time.
Gail confided in her daughter-in-law, Holly Broome, who had previously worked for Jennings and knew he had a personal Yahoo account.
Broome hacked into his account by correctly guessing answers to his security questions. She read the emails between the two lovers, printed out copies and handed them over to Gail's lawyer and to a private investigator Gail had hired.
Earlier court rulings found that the emails at issue were in "electronic storage", thus protected under the SCA. Wednesday's ruling reversed that decision, agreeing with Broome's earlier contention 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.
The case, as well as our expectations that email won't be hoovered up like so many dust bunnies, turns on an acrobatically convoluted definition of the term "backup".
Previous court decisions have held that opened email that's kept in your online inbox, be it in Yahoo, Gmail or whatever other web service you use, is kept there for backup.
But in this case, Jennings v. Jennings, the judges dived into Merriam-Webster's dictionary for a definition of the word.
Regardless of what that dictionary says, it seems darn clear to me that if people aren't deleting their email, they obviously want to store it for possible future reference.
Woodrow Hartzog, a professor at the Cumberland School of Law at Samford University, holds the same opinion, as he told Ars Technica:
"All of the discussions regarding backups, temporary copies, and the read/unread distinction seem to have very little to do with the way that most people perceive their use of e-mail."
Hartzog said that a "politically palatable" update to the SCA hasn't yet been achieved.
At any rate, there's still hope for Jennings, he told Ars, given that Broome could still be found liable under the Computer Fraud and Abuse Act.
Turning to a dictionary for a definition of a word such as "backup" is a time-honored way to supposedly win an argument, as the court did in this case.
But this pedantic tactic of treating a dictionary as sacred gospel ignores the fact that dictionaries morph, sag and lag behind current usage. After all, if they were in fact sacred documents, there would be no need for more than one dictionary.
I refer you here to David Foster Wallace's brilliant 2001 review of Oxford University Press's then-recent release of Bryan A. Garner's A Dictionary of Modern American Usage, in which Foster Wallace illustrates the point:
Did you know that probing the seamy underbelly of U.S. lexicography reveals ideological strife and controversy and intrigue and nastiness and fervor on a nearly hanging-chad scale? For instance, did you know that some modern dictionaries are notoriously liberal and others notoriously conservative, and that certain conservative dictionaries were actually conceived and designed as corrective responses to the "corruption" and "permissiveness" of certain liberal dictionaries? That the oligarchic device of having a special "Distinguished Usage Panel ... of outstanding professional speakers and writers" is an attempted compromise between the forces of egalitarianism and traditionalism in English, but that most linguistic liberals dismiss the Usage Panel as mere sham-populism? Did you know that U.S. lexicography even had a seamy underbelly?
If the court wants to determine the meaning of the word "backup" as it pertains to actual usage, by real, live, breathing, email-using humans, as opposed to deriving meaning from an arbitrary dictionary definition, I'd suggest that judges survey real, live, breathing humans, many of whom, I predict, would deliver the unsurprising news that they don't delete their cloud messages because they're storing them for backup purposes - backup meaning, in this case, "I don't want to delete this yet."
Not that we should trust the cloud to protect our precious documents, mind you.
One incident that made this clear was when US feds told Megaupload users to choose between paying for the forensic expertise to dig out their seized files, or suing Megaupload or its server farm to get them.
No, we shouldn't trust the cloud. But in default of doing anything to further protect our content - namely, backing it up - we do.
And lo, I come across this piece on Lifehacker about Dashlane Courier's new service for sending private, encrypted notes that self-destruct after being read.
Could that be a solution? Are such emails truly deleted forever, beyond the reach of the courts?
If you're familiar with this type of service, please share your thoughts below.
Until and unless the courts apply the Computer Fraud and Abuse Act or other privacy-protecting measures in cases such as this one, it would be nice to have an alternative email solution, for when we really, really don't want email to be read by lawyers and judges.