Theofel v. Farey-Jones

Citation
Theofel v. Farey-Jones, 359 F.3d 1066 (9th Cir. 2003) (full-text), ''cert. denied, 543 U.S. 813 (2004).

Factual Background
The defendant Farey-Jones subpoenaed the plaintiffs' ISP provider NetGate for access to "[a]ll copies of e-mails sent or received by anyone" within the plaintiff's company. NetGate provided some, but not all of the e-mails.

Appellate Court Proceedings
The plaintiffs sued Farey-Jones under, among other statutes, §2701 of the Stored Communications Act (SCA), for unlawful access to their e-mail communications. The crux of this issue was whether the e-mails were in "electronic storage" under the SCA.

If they were in [electronic storage, the subpoena used would be insufficient to access the e-mails. The court held that these e-mails were for backup purposes under subsection (B), and observed:

"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 &mdash; 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 statutory definition."

The Ninth Circuit concluded that "where the underlying message has expired in the normal course, any copy is no longer performing any backup function." Theofel's holding appears to apply when the user downloads a message on his computer and the ISP keeps a copy of the e-mail for "backup protection."

In passing, the Ninth Circuit noted that "[a] remote computing service might be the only place a user stores his messages; in that case, the messages are not stored for backup purposes."

The court seems to be stating that this rule would not apply to some e-mail providers.