## Facts

- During a marital breakdown, Gail Jennings learned her husband, M. Lee Jennings, had been communicating by email with another woman.
- Gail told her daughter-in-law, Holly Broome, who previously worked for Lee and knew he used a personal Yahoo! email account.
- Without authorization, Broome accessed Lee’s Yahoo! account by guessing answers to security questions, read the emails, printed them, and provided copies to Gail’s divorce attorney and to a private investigator Gail hired.
- Lee had received and opened the emails, then left the single copies on Yahoo!’s server without downloading or saving another copy elsewhere.
- Lee sued Gail, Broome, and others, later adding a claim under the federal Stored Communications Act (SCA), 18 U.S.C. §§ 2701–2712.
- The trial court granted summary judgment to defendants on all claims; the court of appeals revived only the SCA claim against Broome; the Supreme Court of South Carolina reviewed only that SCA question.

## Issues

1. Whether previously opened emails remaining on a user’s webmail server are in “electronic storage” under 18 U.S.C. § 2510(17), permitting civil liability under the SCA for unauthorized access.

## Decision

- The Supreme Court of South Carolina reversed the court of appeals and reinstated summary judgment for Broome on the SCA claim.
- The court held the emails were not in “electronic storage” under § 2510(17) because they were neither (A) temporary, intermediate storage incidental to transmission nor (B) storage for backup protection.
- The court stated its interpretation did not condone Broome’s conduct, but the statutory elements for SCA liability were not met on these facts.

## Legal Principles

- “Electronic storage” under 18 U.S.C. § 2510(17) is limited to: (A) temporary, intermediate storage incidental to transmission, and (B) storage by an electronic communication service for backup protection.
- Once an email has been received and opened, it is not in temporary, intermediate storage incidental to transmission under § 2510(17)(A).
- Storage “for purposes of backup protection” under § 2510(17)(B) requires a backup concept—i.e., a secondary copy serving to protect another copy; retaining the only copy of an opened email on a provider’s server is not “backup protection.”
- Unauthorized access to opened web-based emails does not create SCA civil liability where the emails do not satisfy the statutory definition of “electronic storage.”

## Conclusion

The court held that opened emails left as the only copies on a Yahoo! server were not in “electronic storage” under the SCA, so unauthorized access to those emails did not support SCA liability, and summary judgment for the accessing party was proper.


Jennings v. Jennings, 401 S.C. 1, 736 S.E.2d 242 (S.C. 2012)