The Electronic Communications Privacy Act (ECPA) is a law noted for its complexity, and the second portion of it, the Stored Communications Act (SCA) is no exception. In a recent case in the Seventh Circuit, the District Court for the Northern District of Illinois examined the scope of the SCA and what it was, and was not, intended to cover.
At its core, the SCA applies to communications that are in “electronic storage.” One of the complexities of ECPA as a whole is that its definitions are simultaneously precise and ambiguous. Electronic storage at times is in the eye of the beholder when courts examine the issue, and understanding the contours of this definition is important when assessing the scope of the SCA.
In Loughnane v. Zukowski, Rogers, Flood & McArdle, et al., 1:19-cv-00086 (N.D. IL 3/18/2021) the court examined this issue in the context of an employer’s review of a former employee’s work phone. The court noted that while the employer did not necessarily maintain clear policies around certain aspects of the phone use and review, the employer paid for the phone, and phones were routinely expected to be returned to the employer upon termination of employment.
The employee argued that the SCA applied to the employer’s review of the phone, and that the review violated the SCA because it was done without his consent. Notably, the forensic image of the phone was obtained while the phone was in airplane mode, and the disk that the data was extracted to was never connected to the Internet.
The SCA makes it illegal to “intentionally access without authorization a facility through which an electronic communications service is provided” if access to a wire or electronic communication is thereby obtained, altered, or prevented, and while a number of other courts had examined the scope of the SCA as applied to computers that were not connected to the Internet, the Court of Appeals for the Seventh Circuit, which sits over the trial court here, had not. Examples of these rulings include Freedom Banc Mortg. Services, Inc. v. O’Harra, 2012 WL 3862209 (S.D. Ohio 2012), (citing U.S. v. Steiger, 318 F.3d 1039, 1049 (11th Cir. 2003)); Hilderman v. Enea TekSci, Inc., 551 F. Supp. 2d 1183, 1204 (S.D. Cal. 2008).
Examining the facts, the court joined a number of other courts and concluded that the defendant’s conduct in this case did not violate the SCA because the phone in question was not a “facility through which an electronic communications service” was provided.
While employers generally have the ability to perform forensic searches on company devices, the SCA can be a complex and fact-specific law, so employers should ensure that any review of communication contents on company-owned computers, phones, and other devices comply with the SCA.
Learn more about the implications of these developments by contacting the author or your DLA Piper relationship attorney.
By Andy Serwin