CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Wednesday, October 10, 2012

"South Carolina Supreme Court Creates Split With Ninth Circuit on Privacy in Stored E-Mails — and Divides 2-2-1 on the Rationale"

Orin Kerr has this post at The Volokh Conspiracy. In part:

In the last decade, lower courts have divided on the proper privacy protections that apply to opened e-mail held by Internet service providers. The Stored Communications Act gives high privacy protection to e-mails in the course of delivery, and then gives lesser privacy to remotely stored files in the cloud. The difficult question is how to treat opened e-mails held by an ISP: After the user has looked at the e-mail and read it, does the Stored Communications Act treat that copy of an already accessed e-mail stored on the server as an e-mail in the course of delivery or does it treat that copy as a remotely stored file in the cloud?

. . .

In the Jennings case, all five Justices agreed that the e-mails viewed by the daughter-in-law were not in “electronic storage” under the definition. But they divided sharply as to why, with no view getting a majority.

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