This is a sticky case: Lee Jennings, a South Carolina man, was cheating on his wife. She found out, and she hacked into Lee’s Yahoo email account by guessing the answers to his security questions–they were married, after all. Lee Jennings sues his soon-to-be ex, and he wins a settlement, because his emails are protected under the Stored Communications Act. But during the appeal, the South Carolina Supreme Court reverses that judgement, and says that Lee has no claim against his wife, even though she got into his email through surreptitious means. 

The legal lynchpin for this case deals with the word “backup,” which apparently means a totally different thing to South Carolina Supreme Court justices than most people on the internet. From the brief:

“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.”

One of the judges, Chief Justice Hoefer Toal, does his best internet-as-tubes impression:

“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.”

Okay, so according to Justice Toal, I’m not storing data in my Gmail if I open it, star it, and decide to come back later. It’s not electronic storage even if I’m storing a document on a server as long as it’s been opened. So essentially lawyers and judges could crawl over your gigabytes of email stored in Gmail. Although it’s understandable that the legal definition of “backup” isn’t the same as the common definition, it’s also reasonable to ask your lawmakers for stronger digital data protections.

You can read the whole legal decision here.

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