Charleston divorce attorneys know that it is not uncommon for spouses to get suspicious about whether their partner is cheating on them. Not surprisingly, the distrustful spouse may investigate by going through credit card, banking statements, and so on. Also, it is not uncommon for a spouse to try to the other spouse’s email account to see if they can find proof of adultery.
Recently, in the case of Jennings v. Jennings, the South Carolina Supreme Court addressed whether a spouse could be liable in civil (not family) court for hacking into the other spouse’s email account. In this case, the husband confessed to his wife that he had fallen in love with another woman and that he had been emailing his lover. The husband’s daughter-in-law accessed the husband’s personal Yahoo! email account by guessing the correct answers to his security questions. The daughter-in-law read the email exchanges between the husband and his lover and then gave printed copies of these emails to the wife’s attorney and the wife’s private investigator. Later, the husband learned that his emails were in the hands of his wife’s attorney and her investigator. So, the husband filed a civil lawsuit (outside of family court) against his wife, his daughter-in-law, and his wife’s private investigator for, among other things, violations of the federal Stored Communications Act (SCA), 18 U.S.C. §§ 2701-12.
The SCA makes it unlawful to access 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.” In the Jennings case, the husband did not argue subsection (A) applied to his case. Instead, he argued that his emails were protected under subsection (B) because the emails were stored on his computer for the purpose of backup. Essentially, after opening his emails to read them, the husband left his e-mails on the Yahoo! server (he did not delete them). Otherwise, the husband did not download them to his computer or save copies in any other location. The Supreme Court ruled that “retaining an opened email” did not constitute “storing it for backup protection” because backup protection “necessarily presupposes the existence of another copy to which this e-mail would serve as a substitute or support.” Although the Court ruled that the SCA did not apply, the Court expressed that its ruling “should in no way be read as condoning” the acts of reading the husband’s emails.
As a side note, the husband probably could have successfully argued that SCA subsection (A), “temporary, intermediate storage of a wire or electronic communication incidental to the electronic transmission thereof,” applied to his emails. Essentially, the husband could have argued that his emails were temporarily and intermediately stored on Yahoo!’s servers “incidental to the electronic transmission” to the husband’s computer.