Accessing Stored Communications

The Stored Communications Act prevents disclosure of wire and electronic communications when the communication is obtained by unauthorized access. This Act specifically protects communications that are in electronic storage. Electronic storage is any temporary storage incidental to the electronic transmission of a communication and any storage of these communications intended to backup and protect the communication.

The most common stored communication are emails. Under the Act, emails that are unopened and stored on a server are a form of protected communication. However, once an email is opened, it is no longer considered stored, and therefore loses its protection. Conversely, some courts still consider these opened emails that remain on a webmail server protected if they are stored for backup purposes. On the other hand, emails that are saved to a computer hard drive are not protected under the Act. Despite these protections, the Stored Communications Act still allows illegally obtained evidence to be admitted as evidence at trial.

There can be both criminal and civil penalties for a violation of the Stored Communications Act. Criminally, an offender can be fined and imprisoned for anywhere from one to ten years depending on the number of convictions and the severity of the crime. In a civil suit, a violator will have to pay actual damages plus any profits made from the violation in addition to punitive damages if the court deems necessary. Furthermore, if the court has to enforce the damages award, it may order the violator to pay reasonable attorney’s fees and costs. If a person commits a similar offense under Texas law, the act becomes a class A misdemeanor, or a state jail felony if it was committed to obtain a benefit or to harm the victim.

For legal guidance on stored communications, contact the Law Office of Robert Tsai, PLLC at 832-278-1995.