DOJ View on Email Privacy May Hamper Prosecution of Palin Hackers

However, the Department of Justice may be hamstrung in any prosecution of this invasion of privacy by its restrictive view of "electronic storage." The SCA prohibits unauthorized "access to a wire or electronic communication while it is in electronic storage." The act defines "electronic storage" as "any temporary, intermediate storage of a wire or electronic communication incidental to the electronic transmission thereof," or in the alternative as "any storage of such communication by an electronic communication service for purposes of backup protection of such communication."

Under Ninth Circuit precedent, both received and unreceived emails are in electronic storage. This is because when the recipient accesses an email but does not delete it, it moves from storage incident to transmission to backup storage under the second part of the SCA's "electronic storage" definition. See Theofel v. Farey-Jones, 359 F.3d 1066, 1075 (9th Cir. 2003)(finding that “obvious purpose” for storing a message on the provider’s server after delivery is to provide a second copy of the message in the event it needs to be downloaded again). Thus, since Gov. Palin and Yahoo! are both in the Ninth Circuit (Alaska and California respectively), it would violate the SCA to obtain unauthorized access to her emails, whether opened or not.

The DOJ, however, strongly disagrees with Theofel. According to its Prosecuting Computer Crimes Manual, the DOJ "continues to question whether Theofel was correctly decided, since little reason exists for treating old email differently than other material a user may choose to store on a network." Rather, the DOJ argues:

If the recipient chooses to retain a copy of the communication on the service provider's system, the retained copy is no longer in "electronic storage" because it is no longer in "temporary, intermediate storage ... incidental to ... electronic transmission," and neither is it a backup of such a communication.

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