March 7, 2019
New America’s Open Technology Institute (OTI) welcomes the Fourth Circuit Court of Appeals’ opinion yesterday in the case of Hately v. Watts that upholds a commonsense interpretation of the laws surrounding the privacy of online content. In particular, the court ruled that emails which have been opened and then left on the servers of an online web email service are considered being stored for the purposes of backup protection, and thus entitled to the privacy protections detailed in the Stored Communications Act (SCA). OTI was honored to join with other civil society groups in submitting an amicus brief in the case last year.
The court in Hately was faced with the question of whether email stored with an online mail provider such as Google’s Gmail or Microsoft’s Office 365, even after it has been opened, should be assigned the same privacy protections as a piece of paper inside a desk at home. The court held that the answer is yes. The applicable law, the SCA, was enacted over three decades ago, based on an outdated understanding of how people use email. Under the law, an opened email stored with an online provider was entitled to less protection than an unopened email.
While this case dealt with someone who gained unauthorized access to another person’s email account, it carries much broader implications, because the SCA importantly also applies to access by law enforcement. Under the Fourth Circuit’s new interpretation, police will have to go to a judge and get a warrant based on probable cause before they can obtain the content of a person’s email–regardless of how old the email is and whether it has been opened.
The following quote can be attributed to Kevin Bankston, Director of New America’s Open Technology Institute:
“Yesterday’s order from the Fourth Circuit clarifies an important and long-standing question about the scope of the protections under the Stored Communications Act. The court recognized that emails stored with an online web-based email service fall under the highest protections of the Stored Communications Act, and that the intent of Congress in passing the SCA was to protect data stored in just such a way. This decision is a victory for every American who uses the convenience and security of online services to store their data.”