Fifth Circuit holds the Stored Communications Act does not protect text messages and data stored on cell phones

Garcia v. City of Laredo, Tex., 2012 WL 6176479 (5th Cir. Dec. 12, 2012).

A police dispatcher for the City of Laredo claimed the City violated the Stored Communications Act (“SCA”) when it gained access to text messages and images stored on her personal cell phone without her permission. The information discovered on the cell phone resulted in the dispatcher’s termination for violating the police department’s rules and regulations. The Fifth Circuit in Garcia held the SCA did not apply to data stored on plaintiff’s cell phone.

The SCA prohibits the unauthorized access of “a facility through which an electronic communication service is provided.” 18 U.S.C. §2701(a)(1). The Fifth Circuit readily concluded that plaintiff’s personal cell phone was not a “facility” within the meaning the SCA.

The SCA does not define the term “facility,” but the Fifth Circuit in Garcia recognized that prior decisions had applied the Act “to providers of a communication service such as telephone companies, Internet or e-mail service providers, and bulletin board services.” The court in Garcia also noted that United States v. Steiger, 318 F.3d 1039, 1049 (11th Cir. 2003), had addressed whether the SCA could be applied to a hacker who accessed an individual’s computer and obtained information from its hard drive. Steiger held that while the Act might apply when a hacker gains access to an internet service provider, it did not apply when only the victim’s hard drive was accessed to download information.

The Fifth Circuit in Garcia recognized that there are “providers” of electronic communication services as well as “users” of those services, but the SCA’s protection only extends to service providers. It cited with approval Freedom Banc Mortg. Servs., Inc. v. O’Harra, 2012 WL 3862209, *9 (S.D.Ohio Sept. 5, 2012), which explained, “the relevant ‘facilities’ that the SCA is designed to protect are not computers that enable the use of an electronic communication service, but instead are facilities that are operated by electronic communication service providers and used to store and maintain electronic storage.” Thus, the court in Garcia concluded “an individual’s personal cell phone does not provide an electronic communication service just because the device enables use of electronic communication services.”

The Fifth Circuit in Garcia also noted that the Act’s definition of “electronic storage” only encompasses “the information that has been stored by an electronic communication service provider.” Emails and information stored on personal computers do not fit within the Act’s definition of electronic storage. Since no evidence was provided that the City obtained information from the plaintiff’s cellular company or network, the court in Garcia rejected plaintiff’s SCA claim on the additional basis that the information found on the plaintiff’s cell phone did not meet the definition of “electronic storage” within the meaning of the SCA.

Accordingly, a personal device such as smart phone, tablet, or home computer and the data stored thereon is generally not protected by the SCA.

Discovery of text messages under the Stored Communications Act

Illinois hasn’t cornered the market on politicians charged with wrongdoing, lately it only seems that way. Want to know your opponents can obtain the text messages that can get your clients into trouble? Here’s how:  Flagg v.City of Detroit, 252 F.R.D. 346 (E.D. Mich. Aug. 22, 2008).

Flagg has been listed by one e-discovery blog as one of the top 5 e-discovery decisions of 2008.  

No, this is not the decision involving the text messages between the former Mayor of Detroit and his female chief of staff that were purportedly more tawdry and explicit than an old Harlequin romance novel.  Flagg involved a wrongful death action and the text messages being sought related to a possible cover-up and interference of an investigation involving the murder of an exotic dancer who allegedly performed at a party at the Mayor’s official residence. 

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