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S. Carolina Supreme Court: Leaving Email In the Cloud Isn't Electronic Storage 112

Posted by Soulskill
from the how-do-you-internet dept.
New submitter Ibhuk writes "I leave my email stored online, as do many modern email users, particularly for services like Gmail with its ever-expanding storage limit. I don't bother downloading every email I receive. According to the South Carolina Supreme Court, this doesn't qualify as electronic storage. This means most email users are not protected by the Stored Communications Act. All your emails are fair game, so be careful what you write. From the article: 'This new decision creates a split with existing case law (Theofel v. Farey-Jones) as decided in a 2004 case decided by the Ninth Circuit Court of Appeals. That decision found that an e-mail message that was received, read, and left on a server (rather than being deleted) did constitute storage "for purposes of backup protection," and therefore was also defined as being kept in "electronic storage." Legal scholars point to this judicial split as yet another reason why the Supreme Court (and/or Congress) should take up the issue of the Stored Communications Act.'"
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S. Carolina Supreme Court: Leaving Email In the Cloud Isn't Electronic Storage

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  • by 54mc (897170)
    Isn't electronic what?
  • ...because... (Score:4, Insightful)

    by drakaan (688386) on Friday October 12, 2012 @03:07PM (#41634313) Homepage Journal
    ...the could doesn't use servers, right?
    • by Chris Burke (6130)

      No, it uses water vapor. Duh.

    • by drakaan (688386)
      damn. C-L-O-U-D...not could. Thanks, autocorrect.
    • by K. S. Kyosuke (729550) on Friday October 12, 2012 @03:55PM (#41634765)
      I believe that this kind of judicial decision is called "clouded judgment".
      • Not to rain on your parade, but wit is best served dry.

        • Not to rain on your parade, but wit is best served dry.

          My wit actually deserted me a long time ago. Does that qualify?

      • "Ezekiel 23:20"

        Dude... are you REALLY sure you didn't mean Ezekiel 23:19?

        I have struggled mightily with my senses of morals and ethics, for years. Yet I have come to the conclusion that we should build very special bombs, and rain bacon dust down on much of the Middle East, Persia, and parts of Northern Africa.

        Yes, there will be innocents caught in the fallout.

        Perhaps a more reasonable compromise would be to advertise that all American commercial flights will carry 5 pounds of bacon, rigged to vaporize in the eve

        • by sumdumass (711423)

          All you have to do is convince them that the 72 virgins are perpetual virgins meaning they can never have sex with them. It would be in reality like having 72 twelve year old sisters constantly around.

  • Wrong. (Score:5, Insightful)

    by theedgeofoblivious (2474916) on Friday October 12, 2012 @03:10PM (#41634337)

    This is an instance in which the court is just wrong.

    The fact that they don't understand that it's electronically stored has no effect on whether it is. Courts can make all of the rulings in the world but if something objectively is or is not then it just objectively is or is not and regardless of court rulings.

    • Re:Wrong. (Score:5, Insightful)

      by Nutria (679911) on Friday October 12, 2012 @03:11PM (#41634349)

      No, the Court decided correctly.

      It's the law (written decades before the concept of web mail) which is archaic.

      • by Anonymous Coward

        The law may be archaic, but it's not really to blame. The law is very specific, and as such it doesn't have a very broad scope: "any temporary, intermediate storage of a wire or electronic communication incidental to the electronic transmission thereof". Clearly that relates to the carriers and providers, and the end user (and any backups they use) are a different topic.

        • by Synerg1y (2169962)

          what if the email host provider is THE ONLY place you access your mail from?

          • Doesn't matter. According to the law, it is "electronic storage" only if it is temporary buffers or backups. Another poster has quoted the law verbatim, and it is quite clear, even if it is also amazingly stupid.

            • It is information which my personal, copyrighted property, that I am storing in a rented storage facility, and am letting you see.

              I am intending only to let certain people in to the storage container to see the property. Anyone else is trespassing and also
              in copyright violation.

              So what do laws say about the warrantless search of personal property?

              (Lest you say that cloud storage is not rented, remember that you are paying Google the value of yourself as an ad-target.)

            • What if I download my email (i.e read it) and also create on online backup by means of a backup program called an email filter, which removes my email from the cloud server's inbox but stores a backup copy on said server's system in a separate imap-folder I specifically created for backup purposes?

              As long as I have my email copied to another folder called Inbox.bak,Cloudstorage or Secret_Anti-government_Correspondence I should still be safe then?

            • by KDR_11k (778916)

              Considering the duration that's considered "temporary" for copyright law I'd say that anything that won't survive until the heat death of the universe could be considered temporary.

          • This law is not applicable. The law applies to intermediaries and not end points. It's to keep people from sniffing around caches on non-originating and non-recipient machines, and their backups to gain access to someones protected communications.

            The cloud based email service is a communication endpoint and not subject to the law.

      • by jmerlin (1010641)
        Incorrect. The court decided to misinterpret the function of copies in the cloud. An SMTP server makes a backup copy of a transmitted electronic messages so that a user can view it at a later time. If the server does not create this backup, the message would simply be lost forever. This is very similar to how phones work: if you answer your phone and walk out of the room, whatever the other person says is lost forever to you. Hence recording machines were invented to allow users who are not present at
    • by pavon (30274) on Friday October 12, 2012 @03:17PM (#41634399)

      No, the court ruled correctly. The law has a very specific definition of stored communications, and as such only applies to backups and transient copies, not long-term hosted data. It's a stupid definition, but that's congress's fault not the judge's.

      • Backups are long-term hosted data.
        • But long-term hosted data are not necessarily backups, and this case, they aren't. Google mail isn't "backing up" anything.

          • by Luthair (847766)
            How do you know? People could be downloading their email locally but maintaining the copy on the server as backup.
            • by DRJlaw (946416)

              How do you know? People could be downloading their email locally but maintaining the copy on the server as backup.

              But this one was not. From the linked article in the linked article:

              Two Justices -- Justice Hearn, joined by Justice Kittredge -- argued that the Yahoo! e-mails were not in electronic storage because there was no evidence that Jennings had ever downloaded any other copies. Because there were no other copies, the copy stored with Yahoo! could not logically be a backup, as the word âoebackup

              • Then we're back to the justices being technologically illiterate. The only way a message stored on Yahoo's servers could ever have been read is if another copy is made on the recipient's machine (in his web browser or mail client). If they're not marked as read, they are in transit, and SCA applies. If they are marked as read, then there is (or at least was) a "primary" copy for them to be a "backup" of.

                The copy on Yahoo MUST logically be a backup, because if something that is a backup while the origin

      • In that case, the summary is wrong. It should have said "this doesn't qualify as the legal definition of electronic storage per Act XYZ". That this is, in fact, electronic storage to anyone with a brain and some command of English is kind of obvious.
        • by meustrus (1588597)

          In that case, the summary is wrong.

          Shocking! This just in: a slashdot summary is wrong/misleading!

      • No, the court ruled correctly. The law has a very specific definition of stored communications, and as such only applies to backups and transient copies, not long-term hosted data. It's a stupid definition, but that's congress's fault not the judge's.

        Could you point to the "stupid" part of the definition? I'm just not seeing what you're seeing.

        (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.
        [source] [cornell.edu]

        Also if you notice, you'll see that the South Carolina judges couldn't even agree on one majority opinion of why they ruled that way [volokh.com], so their opinion is not going to be of much help to future courts.

      • no, the court ruled incorrectly.

        the original reason for courts is justice. NOT being a machine and following orders, mindlessly.

        we keep forgetting why they are there. they are there to ensure a more just society.

        following laws by the letter reduces us all to machines.

        I don't think, at all, this was the intention of our body of laws. they were meant to help us encourage good behavior and discourage bad.

        tell me now being a machine and simply parsing words (that were not accurate in their meaning) is 'justi

        • by meustrus (1588597)

          I don't buy that the court's reason is to simply parse existing bad laws and derive more bullshit bad laws from it.

          The courts aren't supposed to make (derive) laws. The constitutional purpose of the justice system is to clarify laws and set precedents for how they apply in specific situations. Law-making is reserved for elected officials, so that those laws presumably come from citizens. It would be cumbersome and potentially tyrannical for citizens or their elected proxies to pass judgements in individual

    • Re:Wrong. (Score:5, Funny)

      by Kenja (541830) on Friday October 12, 2012 @03:27PM (#41634495)
      Dont be silly, its reality that's wrong.
    • So a tomato IS a fruit?

    • by hairyfeet (841228)

      But you are assuming that they simply don't understand instead of understand and want to give the government a loophole which will all the rulings that seem to go out of their way to let the government ignore even the flimsy rules they have left? is probably not the right call.

      I know all about the saying about malice and stupidity, but when you are dealing with a government that seems to be "Yay jackboots and spying!" no matter who sits in the big chair its probably safer just to assume malice until prove

  • by Anonymous Coward

    Did that south carolina pageant girl get elected to the state's supreme court?

  • by Anonymous Coward

    And I says what?

  • by Anonymous Coward

    So I can store my own email myself, but the court is forbidding me from contracting with anyone else to provide that service for me?

  • Remember that guy discovered that the zip code was the password Sarah Palin's yahoo account? Wasn't he jailed or something?

    So if the phone hacking scandal that rocked (or still rocking) UK and News Corp, would not be illegal in the USA?

    Wondering what would happen if that judge has a gmail/yahoo/hotmail (or more likely an AOL ) account, and it gets hacked and he gets his own ruling cited as the hacker walks away scot free.

  • Politicians and bureaucrats are not citizens, therefore are not protected by the constitution. Therefore they are enemy combatants and should be sent to gitmo.

  • by Anonymous Coward on Friday October 12, 2012 @03:17PM (#41634403)
    This case notwithstanding, leaving email stored online for over 180 days may be fair game anyway. The Electronic Communications Privacy Act (part of which is the "Stored Communications Act") only requires government warrants for materials stored less than 180 days. For materials over 180 days, a mere subpoena may suffice (See 18 USC 2703(a) and (b)). I diligently remove all email over 120 days old (just to be sure) on a regular basis.
    • Re: (Score:2, Insightful)

      by Anonymous Coward

      Yes, because the 4th amendment authorizes the government to go after your stuff as soon as it's 180 days old.

      NOT.

      Government is out of control. The only possible reason people don't see this is because they're frighteningly stupid.

  • by Anonymous Coward

    It is a backup... the other copy of the email is in my brain.

  • ...the person who has to transcribe my emails to paper and type them in when I want to read them.
  • by gstoddart (321705) on Friday October 12, 2012 @03:23PM (#41634465) Homepage

    So all corporate data stored in the cloud not encrypted so much as to be unreachable is also fair game?

    I can see a massive exodus from Cloud Computing if it's all fair game for law enforcement.

    Welcome to the dystopian future, citizen.

  • "...yet another reason why the Supreme Court (and/or Congress) should take up the issue of the Stored Communications Act."

    I agree that this should be taken up and clarified in law, I'm just not so sure Congress is up to doing it right.

    Is my skepticism showing through??
  • by DRJlaw (946416) on Friday October 12, 2012 @03:27PM (#41634493)

    The ECPA refers to a defintion of "electronic storage" contained in the Wiretap Act (18 USC 2510, item (17) [cornell.edu]) which was never intended to encompass cloud email:

    (17) "electronic storage" means--
          (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 purposes of backup protection of such communication;

    The court logically concluded that if the only copy of the received email is stored in a cloud email account, that copy is not stored for purposes of backup protection of such communication.

    If you are one of those individuals who joyfully cries "RAID is not a backup," then you essentially agree with this court.

    A court, even a Supreme Court, is not empowered to fix "bad statutes" by rewriting them. That pesky separation of powers doctrine requires that Congress pass legistlation to fix the defect, and the President sign that legislation, and no amount of wailing about the illogic of what the law "should be" versus what it is will change that requirement.

    • by whoever57 (658626)

      (B) any storage of such communication by an electronic communication service for purposes of backup protection of such communication;

      So, if I download my email via POP3 or IMAP, and leave a copy on the server, which is the backup? I could argue that the copy on the server is the backup, while my local copy is the primary. What a stupid law to distinguish between backups and original copies!

      • Re: (Score:2, Insightful)

        the whole CONCEPT is absurd!

        my communication is private. it does not matter where its placed, how long it sits there or how many distributed copies I have.

        STUPID COURTS.

        STUPID LAWS.

      • by DRJlaw (946416)

        So, if I download my email via POP3 or IMAP, and leave a copy on the server, which is the backup?

        According to the Ninth Circuit, the server copy.

        Defendants point to these cases and argue that messages remaining on an ISP's server after delivery no longer fall within the Act's coverage. But, even if such messages are not within the purview of subsection (A), they do fit comfortably within subsection (B). There is no dispute that messages remaining on NetGate's server after delivery are stored "by an electron

        • by fynfuqbg (522423)

          An obvious purpose for storing a message on an ISP's server after delivery is to provide a second copy of the message in the event that the user needs to download it again -- if, for example, the message is accidentally erased from the user's own computer. The ISP copy of the message functions as a "backup" for the user. Notably, nothing in the Act requires that the backup protection be for the benefit of the ISP rather than the user. Storage under these circumstances thus literally falls within the statuto

      • by mlts (1038732) *

        It looks like one of the best things to do for E-mail storage so backups are kept "in the cloud", but protected would be to have a large TrueCrypt volume on a box.net or Dropbox drive. In that volume would be someone's archived mail spool info, either the directories from Thunderbird, or PST files from Outlook.

        Of course, contention issues come into play if one wants to access archived mail from multiple machines. Windows does not have a cluster file system (allowing multiple machines to mount the same LUN

    • by Luthair (847766)
      It could be ruled unconstitutional.
      • by DRJlaw (946416)

        It could be ruled unconstitutional.

        On what grounds?

        Authority -- commerce clause; email is predominantly interstate.

        Equal protection -- who does it discriminate against and how does the disparate effect relate to a protected class?

        Other?

        "Unconstitutional" is not a card you can whip out the moment that you disagree with a law...

        • by Luthair (847766)
          You misunderstand, I was simply pointing out that the court has the power to invalidate if they feel its unconstitutional.
    • The job of judges -IS-, absolutely, to apply the intent of applicable statue to the changing of the times. Clearly, the statute was intended to secure communication while in transit and where it is stored AFTER the traditionally defined (in wiretap terms) concept of "delivery"it was admittedly written in a time where the download and RE-upload of communication for "backup protection" was commonplace. However, technology has shifted; there is no longer the need to download and re-upload, what GETS downloaded

      • by DRJlaw (946416)

        The job of judges -IS-, absolutely, to apply the intent of applicable statue to the changing of the times.

        Yeah... the absolutely part... no attorney who has studied constitutional law is going to buy that. The "living constitution" (and analogous "living statute") theory of legal interpretation is one of many, and is quite open to philosophical debate.

        You're also going to have a hard time convincing many people that the "intent of [the] applicable statute" evolves over time in an undefined way rather than

      • by Bucc5062 (856482)

        So I guess this action [inquisitr.com] would also fall under the "your kidding" option or how does one drive a horse. Perhaps they should change the law to just OUI (easy to suss out).

    • by Terrasque (796014)

      That is .. very silly indeed.

      It's a bit like defining a home as where you sleep, and further defining that the only thing that thus needs warrant to search is your bed mattress and blankets.

      Or define vehicle as "Ferrari, horse, horse wagon and steam wagon".

      Or maybe define the president as whoever sits in the president's chair in the oval office...

      Whoever wrote those "laws" are crazy, and should be in a mental hospital somewhere, not writing .... that stuff. *sigh*

    • by blade8086 (183911)

      If you have to download every message to read it (or to view the subject), and then delete this copy when you close your browser tab,
      guess what - the server copy just became a backup of what you had stored on your computer while you were reading it.

      Also - how many people keep their email in yahoo mail 'because they would rather have it there as a backup'
      than to 'have it on their own device where they could lose the data' ?

      If you have a badly implemented backup policy, where does your *intent* to have it *be

    • by jmerlin (1010641)

      I think we must conclude that this court was horribly mistaken in both its understanding of what this text says (poor interpretation) and in what the "copy" in the cloud represents (poor understanding of technology). Consider, for a moment, the telephone. One would not argue that this definition of "backups" clearly applies to the use of a recording device to record a telephone conversation. Now what happens if one end simply enables a recording device, leaves the room, and comes back in 20 minutes when

  • You might want to take a few hours to explain what "cloud" means in this context.

  • We have seen it and we will keep seeing it until there is a major change of government in the U.S.

    They write laws governing us and laws governing them [government and business]. The laws governing either are managed inconsistently. (That's the nicest way I know how to put it) The laws governing government are all but completely ignored. Constitutional issues never make it to the courts for challenge. They redefine reality in all areas of government. In this case, they say email is not "e" (electronic)

    • by JDG1980 (2438906)

      It's just a formality that a judge is declaring email not electronic storage. They ALREADY have access to all electronic communications and all storage. They HAVE IT. They may or may not deny it.

      No, it is not just a formality. They may have it anyway, but they can't use it as evidence in court if it is illegally obtained.

      • by erroneus (253617)

        I guess you;ve never heard od the other end-runs they pull off. "Enemy combatant" is a buzz word they use to strip anyone and everyone of constitutional guarantees and even of "human rights." They don't need law or trials or anything to 'disappear' people.

        Before anything gets done about it, we have to start acknowleding what we see. And most of it is in plain sight.

  • If I haven't downloaded my mail, then it's still in transit.

    If I have downloaded my mail, then it's a backup.

    If I've read my mail but not downloaded it, oh, wait, that's physically impossible, so it must be either in transit or it's a backup.

    But it's neither a backup nor in transit, according to the court.

    Help!

  • If you read it you do. You cannot read it without downloading it. What you mean is that you do not create a local permanent copy of every email you read.

  • If they were emails left in my Inbox, they might have a case. Maybe. And if they are ones left in my Inbox, it's likely I haven't figured out what to do with them and really don't care about the privacy asspect of them. I just have a difficult time throwing stuff away.

    Email that I consider important is also keep on Gmail, even after I've read it. I also have it sorted into separate folders similarly to how one would put them in a filing cabinet. They are there specifically for archival/documentation purpose

  • No one outside of South Carolina (or inside South Carolina, except for the rare occasion where you're bringing up federal discovery rules in state court) should care what the Supreme Court of South Carolina says about a federal statute.
  • Give up, close it all down, we're done. Let's go kill ourselves.

  • by Legion303 (97901)

    derp.

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