Intrusion into Former Employee’s Email Account May Violate Stored Communications Act

In Brooks v. AM Resorts, LLC, 2013 U.S. Dist. LEXIS 93372 (E. D. Pa. July 3, 2013)(Brody, J.), the Plaintiff filed an action against his former employer, alleging that the employer gained unauthorized accessed to his computer and email account in violation of the Stored Communications Act (“SCA”), 18 U.S.C. §2701 and the Computer Fraud and Abuse Act (“CFAA”), 18 U.S.C. §1030. During his employment the Plaintiff had allowed the employer to install a program called TeamViewer on his personal desktop computer. After he was fired, the Plaintiff engaged in an email exchange with his lawyers to discuss attorney-client privileged matters. Plaintiff then received an email from his former supervisor which attached the privileged email exchange between the Plaintiff and his lawyers and there was evidence that someone accessed the Plaintiff’s computer via TeamViewer on four separate occasions after his termination.

In Brooks, the Court noted that the Stored Communications Act (SCA) provides that whoever “(1) intentionally accesses without authorization a facility through which an electronic communication service is provided; or (2) intentionally exceeds an authorization to access that facility; and thereby obtains, alters, or prevents authorized access to a wire or electronic communication while it is in electronic storage in such system shall be punished . . . .”18 U.S.C. § 2701(a). Electronic storage is defined as “(A) any temporary, intermediate storage of a wire or electronic communication incidental to the electronic transmission thereof; and (B) any storage of such communication by an electronic communication service for purposes of backup protection of such communication.”

In Brooks, the Court declined to enter summary judgment and ruled that the Plaintiff may proceed to trial with his claim under the Stored Communications Act claim, finding that if the employer obtained the privileged email exchange by accessing Plaintiff’s personal email account, there would be a SCA violation. In Brooks the Court also held that the Plaintiff’s CFAA claim failed because the Plaintiff did not demonstrate that he suffered the requisite “loss” under the CFAA.

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