November 11, 2015 Top Story

Circuit Split Creates Data Protection Uncertainty

Interpreting "electronic storage" proves difficult in the face of evolving technology

Kristen L. Burge

In Anzaldua v. Northeast Ambulance & Fire Protection District, the U.S. Court of Appeals for the Eighth Circuit narrowly interpreted the term electronic storage and rejected the Ninth Circuit’s more expansive interpretation of the term. The Eighth Circuit found that the plaintiff in Anzaldua failed to prove allegedly stolen data violated the Stored Communications Act (SCA). ABA Section of Litigation leaders say the decision creates a circuit split and demonstrates how evolving technology can bedevil the electronic storage definition under the SCA, thereby weakening data privacy.

Anzaldua and its Narrow Interpretation of Electronic Storage 

In Anzaldua, the plaintiff alleged his ex-girlfriend, one of the named defendants, used his password to gain access to his personal email account. The plaintiff argued the defendants violated the SCA by accessing his account without authorization and forwarding two saved emails, including one stored in his sent folder. He further argued, relying upon Ninth Circuit decision Theofel v. Farey-Jones, the sent email qualified as electronic storage because the sent folder served a backup purpose until “the underlying message expired in the normal course.”

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