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Supreme Court refuses e-mail privacy case, leaving divergent opinions intact

Does federal privacy law protect personal e-mail from prying eyes? Lower courts conflict, but the Supreme Court on Monday declined to take a case that might have clarified the extent of protections.

By Staff writer / April 15, 2013

The steps of the Supreme Court are seen on March 26.

Joshua Roberts/Reuters

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The US Supreme Court declined on Monday to take up a case testing to what extent personal e-mail is protected by federal privacy law.

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Most Americans believe that their private e-mail accounts are at least as secure from prying eyes as paper-based snail mail that arrives at their front doors. It is not.

The federal privacy law governing e-mail and digital communications was passed in 1986, long before Internet-based e-mail became an essential form of personal communication in the US.

The appeal in Jennings v. Broome (12-831) was asking the high court to resolve divergent judicial opinions, one released by a federal appeals court in California and, most recently, one announced by the South Carolina Supreme Court. By refusing to take up the case, the justices are allowing the divergent opinions to remain in place. Sometimes this is done to permit a more suitable case to arrive at the high court. The justices did not explain why they rejected the case.

The e-mail privacy issue arose in a South Carolina case involving marital infidelity. Gail Jennings found a card for flowers in her husband’s car. She couldn’t recall receiving flowers. When she confronted her husband about it, Lee Jennings confessed that he’d fallen in love with another woman. Mr. Jennings admitted that he had been corresponding with the woman via e-mail, but he refused to reveal her name.

Gail Jennings discussed the issue with her daughter-in-law (from another marriage), Holly Broome. Ms. Broome had worked for Mr. Jennings and knew he had a personal e-mail account with Yahoo. She hacked into the account by guessing the answers to his security questions and resetting his password. Broome then printed out copies of incriminating personal e-mails and turned them over to Gail Jennings, Gail’s divorce lawyer, and a private investigator.

When Mr. Jennings discovered his e-mail had been hacked, he sued Gail, Broome, and the investigator for allegedly invading his privacy and violating the federal Stored Communications Act.

A state judge dismissed the case. An appeals court upheld the dismissal as to Gail and the investigator, but the appellate court said Mr. Jennings could sue Broome under the Stored Communications Act because the disclosed e-mails were in “electronic storage” at the time they were accessed and were thus covered by the federal law.

The South Carolina Supreme Court disagreed. “We find these emails were not in electronic storage,” the court said. The justices reasoned that once an e-mail recipient opens a message, that e-mail is no longer in electronic storage, even though Jennings left his e-mails on the Yahoo server.

The bottom line was that Broome could not be held liable under the Stored Communications Act for accessing and disclosing the content of Jennings’ e-mails.

Appellate lawyers were hoping the US Supreme Court would take the case and determine when an e-mail is in “electronic storage” under the Stored Communications Act. The issue is critical in determining what level of privacy protection applies to e-mails, both read and unread.

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