Defendant may have had authority to access electronic storage

In Shefts v. Petrakis, 2011 U.S. Dist. LEXIS 136538 (C.D. Ill. 2011), a court denied summary judgment where a business partner accessed an employee's e-mail in violation of the SCA because he may have had authority to do so.

The plaintiff and defendant were two of four partners in a business. After hearing various reports of wrongdoing by the plaintiff (including sexual harassment of employees), the defendant asked their computer technician to have a copy of plaintiff's e-mail account copied to his laptop. The plaintiff argues that this was a violation of the SCA.

The court first finds that this was "access" under the SCA when the copy was made - it was irrelevant whether the defendant actually opened or read any of the e-mails. And although he did not personally "access" the account, he caused it to be accessed.

Whether he had accessed communications in "electronic storage" was the second issue addressed. The defendant cited the district court opinion in Fraser (135 F.Supp.2d 623 (E.D. Pa. 2001)), arguing that the e-mails were in post-transmission storage, but the court rejected it under Theofel's reasoning (Theofel v. Farey-Jones, 359 F.3d 1066 (9th Cir. 2004)).

Ultimately, the case comes down to authority. Since the e-mails were stored on a company server, the rules are slightly different. They had no policy on the matter, so each side argues that favors them. The board had not given the defendant any express authorization to access others' emails, though the court argues that firing the plaintiff may have been after-the-fact consent depending on what the board knew. The defendant also claims that the plaintiff knew he was accessing the account, and his continued use was consent. Because of this disputed issue, summary judgment was denied.