On Wednesday, March 6, 2019, the United States Court of Appeals for the Fourth Circuit decided Patrick Hately v. Dr. David Watts, ruling that opened and read emails are covered by the federal Stored Communications Act’s privacy protections. Watts used a password provided to him by the mother of Hately’s children, with whom Watts was having an affair, to browse Hately’s emails in an attempt to uncover evidence of a relationship between Hately and Watts’s ex-wife. The Fourth Circuit ultimately found that the district court erred in finding Hately did not demonstrate the statutory injury required under state law and in finding that Hately’s opened and read emails were not statutorily protected “electronic storage” under federal law.
The appellate court revisited the procedural history of the case in order to determine whether or not Hately’s Virginia Computer Crimes Act claims in the present case were barred from re-litigation due to issue preclusion. The Fourth Circuit found the lower court’s “one-sentence description of the basis of its dismissal of the Virginia Computer Crimes Act claims leaves open at least two possibilities as to the reason for the dismissal.” Thus, the Fourth Circuit held that it could not be certain whether the lower court actually decided whether Hately’s claims were actionable under state law and, as such, issue preclusion could not apply. Even further, the appellate court ruled that the lower court erred since Virginia adheres to the “doctrine of mutuality. . . [which] forbids a litigant from invoking issue preclusion ‘unless he would have been bound had the litigation of the issue in the prior action reached the opposite result.'”
The district court dismissed Hately’s Stored Communications Act claims under the reasoning that the Stored Communications Act did not protect opened email messages. Watts previously contended that he “did not open or view any email that was unopened, marked as unread, previously deleted, or in the [student email account]’s ‘trash’ folder.” The Fourth Circuit examined the legislative intent in enacting the Stored Communications Act before examining the statutory language, finding that Congress wanted to codify citizens’ interests in confidentiality of communications in electronic storage. After examining the plain language of the statute, the Fourth Circuit held that previously opened and delivered emails stored in a web-based email client are in ‘electronic storage’ within the meaning of Subsection (b) [of the Stored Communications Act].”
Despite being a question of first impression for the appellate court, the Fourth Circuit found that Hately’s web-based emails were “reserved for future use” by the email host in the event that Hately wished to access said emails in the future, bringing Hately’s emails under the purview of the Stored Communications Act. Watts argued that the email service at issue was not an “electronic communication service” but, rather, strictly a “remote computing service.” In disagreeing with Watts, the Fourth Circuit wrote: “Potential users of web-based-email services – like Blue Ridge College’s email service – would be deterred from using such services, knowing that unauthorized individuals and entities could access many, if not most, of the users’ most sensitive emails without running afoul of federal law.”
The Fourth Circuit reversed the district court’s dismissals of Hately’s state and federal claims and remanded the case to the district court.
Additional Reading
Appeals Court: Stored Communications Act Privacy Protections Cover Opened And Read Emails, Techdirt (March 15, 2019)
Patrick Hately v Dr. David Watts, United States Court of Appeals for the Fourth Circuit (Case No. 0:18-cv.pr-01306) (March 6, 2019)