Opened Emails Not Protected by the SCA

Last month, Judge Roger Vinson issued a decision, Sartori v. Schrodt, 3:18cv204-RV/HTC, 2019 U.S. Dist. LEXIS 223533 (N.D. Fla. Nov. 25, 2019) ruling on the Defendant’s motion for summary judgment. The parties, a husband and wife, in this case had joint access to a laptop kept in their home. They shared a Skype account, on which the wife found sexually explicit photos of her husband with other women. She was also able to get access to his gmail account without using his password and found more evidence of his extramarital affairs. His emails had not been downloaded to the laptop. Sartori was subsequently court martialed, discharged from the army, and sentenced to 10 years in prison for domestic abuse. The husband alleges that his wife violated the Computer Fraud and Abuse Act and the Stored Communications Act by accessing his gmail, the laptop, and Skype accounts. Judge Vinson rejected his claim with respect to the laptop and Skype. “Again, she was the person who created the password and log-on credentials for that particular account, and she used the same password and log-on credentials that she had used for other family accounts.”. Id. at *12. He aldo ruled that her second access of the Plaintiff’s gmail account was not a violation because implied consent was established by Sartori’s acknowledging that his infidelity was already disclosed. The Court concluded that the statutes could be violated even if the passwords weren’t used to access the account. Under the CFAA the claimant must prove $5,000 in damages. However because the husband’s infidelity was already disclosed through the Skype account, Judge Vinson concluded the accessing of gmail account didn’t result in such damages. “. . . the only thing Sartori was worried about was Schrodt discovering his extramarital affairs, and once she did so he no longer cared about her accessing the computer and online accounts.”. Id. at *19. Under the SCA, the Court concluded there was no temporary storage; and that the emails were not in storage for backup protection. “It thus appears that most courts have held (and I agree) that the SCA doesn't reach and protect undeleted emails that have already been delivered and opened by the intended recipient. In that situation—which is what we have here—the emails are no longer ‘electronic storage.’“. Id. at * 29.