Citation Edit

Thompson v. Ross, 2010 WL 3896533 (W.D. Pa. Sept. 30, 2010) (full-text).

Factual Background Edit

Plaintiff Thompson and Defendant Kaczmarek were involved in a romantic relationship before the filing of this case. After the relationship ended, Kaczmarek notified Defendant Ross that she was in possession of Plaintiff’s personal computer and its hard drive contained various embarrassing email messages. Defendants Ross and Miller allegedly contacted Kaczmarek to obtain the laptop, which was subsequently provided to Defendant Miller “on the understanding that Miller intended to have other [Citigroup] employees, access, search, and extract data from the computer’s hard drive with the desired result of obtaining embarrassing information.”

Trial Court Proceedings Edit

Plaintiff filed a lawsuit, alleging violations of the Stored Communications Act (SCA), violations of the Pennsylvania Stored Communications Act, claims of the common law tort of invasion of privacy by intrusion upon seclusion, and the common law tort of civil conspiracy against Defendants Kaczmarek, Ross, Miller, as well as their employer Morgan Stanley Smith Barney, whose location and equipment the other defendants used in the actions described in Plaintiff’s complaint.

The SCA provides in relevant part that whoever:

(1) Intentionally accesses without authorization a facility through which an electronic communication 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 . . . “[1]

The SCA provides for both criminal penalties, and a civil cause of action for “any provider of electronic communication service, subscriber, or other person aggrieved by any violation of this chapter.

In response to Defendants’ motion for summary judgment, the plaintiff made the following arguments:

  1. That email messages are considered to be electronic communications protected under the SCA;
  2. That his laptop computer was his means by which he accessed his email messages, and was therefore “a facility through which an electronic communication service is provided”;
  3. That the e-mail messages were downloaded and saved to the laptop hard drive for the purpose of backup protection for the message, and
  4. That Defendants accessed the data without proper authority or permission, hence violating the SCA and the parallel Pennsylvania statute.

Defendants accepted that e-mail messages are protected under the SCA and that Plaintiff had not given them authority to access his hard drive but Defendants argued that they did not access material held in electronic storage by an electronic communication service and therefore the SCA did not apply.

The SCA defines "electronic storage" as either (a) "any temporary, intermediate storage of a wire or electronic communication incidental to the electronic transmission thereof", or (b) "any storage of such communication by an electronic communications service for purposes of backup protection of such communication."[2] Plaintiff’s complaint clearly states that the unauthorized access to his e-mails occurred while they were downloaded to his hard drive and not while they were in temporary storage or during the course of their transmission. Similarly, Plaintiff merely alleges that the e-mails were accessed while in backup storage on his own computer, not while in storage in some facility maintained by the actual ISP. It has been established that emails stored by an ISP during the course of transmission, and even after delivery for backup protection, are entitled to protection under the SCA.[3]

The court refused to apply the expansive interpretation of the SCA requested by the Plaintiff and granted the Defendants’ motion for summary judgment with regards to the SCA and Pennsylvania Stored Communications Act claims. In addressing the Plaintiff’s claims against Smith Barney for invasion of privacy and conspiracy, Defendant Smith Barney’s motion to dismiss was granted for a failure by the Plaintiff to allege any facts describing an active role in participation taken by that Defendant. Finally, regarding the remaining claims for invasion of privacy and conspiracy against the remaining defendants, the court opted not to exercise supplemental jurisdiction after the primary claims under the SCA statute were dismissed.

References Edit

  1. 18 U.S.C. §2701.
  2. 18 U.S.C. §2510(17); see also 18 U.S.C. §2711(1) (providing that terms defined in § 2510 apply to Title II of ECPA).
  3. Theofel v. Farey-Jones, 359 F.3d 1066, 1075 (9th Cir. 2003)(full-text).

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