Hately v. Watts
309 F. Supp. 3d 407
E.D. Va.2018Background
- Plaintiff Patrick Hately had a school-provided email account with Blue Ridge Community College (VCCS); defendant David Watts obtained Hately's password from a third party and logged into the account and read several delivered emails.
- Hately typically opened and read incoming emails; Watts did not alter emails, access deleted or unread messages, or access VCCS backup copies.
- Hately sued under the Stored Communications Act (SCA), 18 U.S.C. § 2701, alleging unauthorized access to stored electronic communications.
- The sole legal question was whether the emails Watts read were "in electronic storage" under 18 U.S.C. § 2510(17), making Watts’ access unlawful under § 2701(a).
- The parties filed cross-motions for summary judgment; the court took undisputed facts as true for purposes of deciding the motions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether accessed emails were "in electronic storage" under § 2510(17)(A) (temporary intermediate storage incidental to transmission) | Hately contends prior access is irrelevant and service copies can be "in electronic storage" regardless of whether messages were opened | Watts argues delivered and opened emails are no longer in the temporary storage incidental to transmission and thus fall outside (A) | Court: (A) does not cover delivered/opened emails; it reaches only unread or not-yet-downloaded messages |
| Whether accessed emails were "in electronic storage" under § 2510(17)(B) (storage by ECS for backup protection) | Hately relies on Ninth Circuit (Theofel) and others: backups/service copies held by providers are "in electronic storage" even after delivery | Watts argues service copies available to users are not backup copies stored by an ECS; VCCS copies were user-accessible service copies and VCCS was acting as an RCS, not an ECS, for those copies | Court: (B) is limited to backups of transient communications made while in transit and/or stored by an ECS for administrative backup; service copies of delivered/opened emails (and copies maintained while provider acted as an RCS) are not covered |
| Whether VCCS acted as an ECS with respect to the service copies accessed through the user account | Hately: multiple copies exist and provider storage can qualify as backup protection | Watts: VCCS stored service copies to present to users (RCS function), not as ECS backup copies available only by provider request | Court: VCCS was acting as an RCS for those service copies; paragraph (B) targets ECS backup copies, so VCCS service copies are not § 2510(17)(B) storage |
| Sufficiency of evidence to create a triable issue on SCA coverage | Hately argues defendant's statements are self-serving and disputes status of emails | Watts relies on undisputed evidence he accessed only delivered/opened service copies and did not alter or access backups | Court: Hately failed to produce evidence that messages accessed were unread, undelivered, or provider backup copies; no genuine issue of material fact on SCA element |
Key Cases Cited
- Anzaldua v. Northeast Ambulance & Fire Prot. Dist., 793 F.3d 822 (8th Cir. 2015) (interpreting scope of "electronic storage" and collecting authorities)
- Theofel v. Farey-Jones, 359 F.3d 1066 (9th Cir. 2004) (held provider-held messages can be "in electronic storage" despite prior user access)
- In re DoubleClick, Inc. Privacy Litig., 154 F. Supp. 2d 497 (S.D.N.Y. 2001) (distinguishing service copies and provider backups under the SCA)
- Van Alstyne v. Elec. Scriptorium, Ltd., 560 F.3d 199 (4th Cir. 2009) (addressing § 2510(17)(B) issues on appeal)
- Jennings v. Jennings, 736 S.E.2d 242 (S.C. 2012) (state high court construing § 2510(17) to cover only transient storage and backups of such transmissions)