Another Possible Litigation Tool Under the Stored Communications Act
The District Court for the Northern District of Illinois recently held in Devine v. Kapasi, et. al., that “[w]here, as here, a plaintiff pleads that it stores electronic communications on its own systems, and that a defendant intentionally and without authorization got hold of those stored communications through the plaintiff’s electronic facilities, the plaintiff states a claim under § 2701 of the SCA [Stored Communications Act].” 2010 U.S. Dist. LEXIS 56488 (N.D. Ill. June 7, 2010).
The case arose following a split of the company Geus. Under the departure agreement, a former 50% shareholder, Jeff Devine, left the company to form Devine Solutions. Devine also received a server formerly owned and used by Geus for use in his new company. For the several days immediately following the transfer, and before the Geus-issued passwords were terminated, defendant Geus employees accessed the server to destroy electronic files belonging to Devine Solutions.
Defendants argued they could not be liable under § 2701 of the SCA because the Act requires a defendant to “intentionally access without authorization” or “intentionally exceed an authorization to access” a “facility through which an electronic communication service is provided . . . .” Defendants reasoned that § 2701 could not apply to them because they were not in the business of providing an electronic communication service to the public. Noting that no circuit court had ruled directly on point and that district courts were split on the issue, the district court held that the section did not require a plaintiff to be an electronic services provider to the public, but only that the “workplace be a facility through which an electronic service is provided.” (citing Expert Janitorial, LLC v. Williams, 2010 U.S. Dist. LEXIS 23080, at *13-14 (E.D. Tenn. March 12, 2010)). Litigators take note: this case may extend private rights of action under the SCA for unauthorized access to protected files.