Federal appeals court says opened emails are protected

In a tale of not one but two affairs and emails between the philandering parties has come a victory for data privacy, a federal appeals court has ruled that “previously opened and delivered emails” stored 'in a web-based email client' are protected 'electronic storage' for purposes of the Stored Communications Act."

CDT had filed a brief in the case (Hately vs. Watts--which was cited in the decision--arguing that was the right call.

“This is an important victory for privacy," said Greg Nojeim, director of the CDT Freedom, Security and Technology Project. "A contrary ruling would have meant that spam emails nobody opens are better protected from government access than sensitive, personal messages you open and save."

In this case the facts were a tad more salacious than the average data privacy case. It hinged on e-mails regarding a complicated love quadrangle involving Patrick Hately and his girlfriend, Nicole, and David Watts and his wife, Audrey.

Nicole was having an affair with Watts. Hately and Nicole separated. Nicole knew that Hately was having an affair with Audrey. Since Nicole still shared an email account with Hately, she let Watts peruse it to find evidence of the affair so Watts could more easily divorce. Watts did look at the emails, but only at opened emails and not backed up copies, arguing those did not qualify as "stored" communications.

Hately filed suit against Watt for unlawful access. A lower court found for Watts, including that looking at those emails did not do any actual harm to Hately.

Wrong on both counts said the U.S. Court of Appeals for the Fourth Circuit this week.

"Hately contends that previously opened and delivered emails stored in a web-based email client are in 'electronic storage' within the meaning of Subsection (B), which encompasses “any [1] storage of [2] such communication [3] by an electronic communication service [4] for purposes of backup protection of such communication," said the court. "[W]e conclude that previously opened and delivered emails fall within each element of this definition.

The court also said the time and money Hately spent to track and prevent future access.

The court reversed the district court's conclusion that Watts had not violated the Virginia Computer Crimes Act and Stored Communications Act claims.