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S. Carolina Supreme Court: Leaving Email In the Cloud Isn't Electronic Storage

Soulskill posted more than 2 years ago | from the how-do-you-internet dept.

Cloud 112

New submitter Ibhuk writes "I leave my email stored online, as do many modern email users, particularly for services like Gmail with its ever-expanding storage limit. I don't bother downloading every email I receive. According to the South Carolina Supreme Court, this doesn't qualify as electronic storage. This means most email users are not protected by the Stored Communications Act. All your emails are fair game, so be careful what you write. From the article: 'This new decision creates a split with existing case law (Theofel v. Farey-Jones) as decided in a 2004 case decided by the Ninth Circuit Court of Appeals. That decision found that an e-mail message that was received, read, and left on a server (rather than being deleted) did constitute storage "for purposes of backup protection," and therefore was also defined as being kept in "electronic storage." Legal scholars point to this judicial split as yet another reason why the Supreme Court (and/or Congress) should take up the issue of the Stored Communications Act.'"

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title (1)

54mc (897170) | more than 2 years ago | (#41634297)

Isn't electronic what?

Re:title (0)

Anonymous Coward | more than 2 years ago | (#41635479)

Storage

...because... (3, Insightful)

drakaan (688386) | more than 2 years ago | (#41634313)

...the could doesn't use servers, right?

Re:...because... (1)

Chris Burke (6130) | more than 2 years ago | (#41634351)

No, it uses water vapor. Duh.

Re:...because... (1)

drakaan (688386) | more than 2 years ago | (#41634591)

damn. C-L-O-U-D...not could. Thanks, autocorrect.

Re:...because... (0)

Anonymous Coward | more than 2 years ago | (#41635195)

it's not auto-correct's fault you can't type.

Re:...because... (1)

drakaan (688386) | more than 2 years ago | (#41637723)

You're right. I really wanted to blame it on my phone but you called me on my untruth. Well played, AC, well played.

Re:...because... (5, Funny)

K. S. Kyosuke (729550) | more than 2 years ago | (#41634765)

I believe that this kind of judicial decision is called "clouded judgment".

Re:...because... (1)

jaymemaurice (2024752) | more than 2 years ago | (#41635295)

Not to rain on your parade, but wit is best served dry.

Re:...because... (1)

K. S. Kyosuke (729550) | more than 2 years ago | (#41635875)

Not to rain on your parade, but wit is best served dry.

My wit actually deserted me a long time ago. Does that qualify?

Re:...because... (1)

Jane Q. Public (1010737) | more than 2 years ago | (#41639523)

"Ezekiel 23:20"

Dude... are you REALLY sure you didn't mean Ezekiel 23:19?

I have struggled mightily with my senses of morals and ethics, for years. Yet I have come to the conclusion that we should build very special bombs, and rain bacon dust down on much of the Middle East, Persia, and parts of Northern Africa.

Yes, there will be innocents caught in the fallout.

Perhaps a more reasonable compromise would be to advertise that all American commercial flights will carry 5 pounds of bacon, rigged to vaporize in the event of a catastrophic failure. Thus the "heros" of militant Islam will never get their 72 virgins, or anything else of their version of Heaven, for that matter, and their efforts will not net them the finish they seek.

Remove the motivation, prevent the act.

If people want to use religion as a tool of war against us, turnabout is fair play.

Wrong. (4, Insightful)

theedgeofoblivious (2474916) | more than 2 years ago | (#41634337)

This is an instance in which the court is just wrong.

The fact that they don't understand that it's electronically stored has no effect on whether it is. Courts can make all of the rulings in the world but if something objectively is or is not then it just objectively is or is not and regardless of court rulings.

Re:Wrong. (4, Insightful)

Nutria (679911) | more than 2 years ago | (#41634349)

No, the Court decided correctly.

It's the law (written decades before the concept of web mail) which is archaic.

Re:Wrong. (1)

Anonymous Coward | more than 2 years ago | (#41634413)

The law may be archaic, but it's not really to blame. The law is very specific, and as such it doesn't have a very broad scope: "any temporary, intermediate storage of a wire or electronic communication incidental to the electronic transmission thereof". Clearly that relates to the carriers and providers, and the end user (and any backups they use) are a different topic.

Re:Wrong. (1)

Synerg1y (2169962) | more than 2 years ago | (#41634525)

what if the email host provider is THE ONLY place you access your mail from?

Re:Wrong. (2)

Chris Mattern (191822) | more than 2 years ago | (#41634621)

Doesn't matter. According to the law, it is "electronic storage" only if it is temporary buffers or backups. Another poster has quoted the law verbatim, and it is quite clear, even if it is also amazingly stupid.

Email is not primarily communication (1)

presidenteloco (659168) | more than 2 years ago | (#41634733)

It is information which my personal, copyrighted property, that I am storing in a rented storage facility, and am letting you see.

I am intending only to let certain people in to the storage container to see the property. Anyone else is trespassing and also
in copyright violation.

So what do laws say about the warrantless search of personal property?

(Lest you say that cloud storage is not rented, remember that you are paying Google the value of yourself as an ad-target.)

Re:Wrong. (0)

Anonymous Coward | more than 2 years ago | (#41635063)

...it is quite clear...

I don't think these words mean what you think they mean.

Re:Wrong. (1)

Mike Buddha (10734) | more than 2 years ago | (#41637399)

This law is not applicable. The law applies to intermediaries and not end points. It's to keep people from sniffing around caches on non-originating and non-recipient machines, and their backups to gain access to someones protected communications.

The cloud based email service is a communication endpoint and not subject to the law.

Re:Wrong. (0)

Anonymous Coward | more than 2 years ago | (#41634421)

No, the court interpreted (read: bent) a low to suit it's purposes.

The mails are on hard-drives, in electronic format, the only thing different is their location.

I have a laptop with linux on it, but I never turn it off, when I travel, I just set it to sleep for long trips, or just close the lid for short ones. If I download the emails, and delete them as I receive them, encrypt the hardisk and forget the password because I would only have to use it a few times a year, would they believe me?

Bad law, not bad judge. (5, Informative)

pavon (30274) | more than 2 years ago | (#41634399)

No, the court ruled correctly. The law has a very specific definition of stored communications, and as such only applies to backups and transient copies, not long-term hosted data. It's a stupid definition, but that's congress's fault not the judge's.

Re:Bad law, not bad judge. (1)

fredprado (2569351) | more than 2 years ago | (#41634553)

Backups are long-term hosted data.

Re:Bad law, not bad judge. (2)

Chris Mattern (191822) | more than 2 years ago | (#41634583)

But long-term hosted data are not necessarily backups, and this case, they aren't. Google mail isn't "backing up" anything.

Re:Bad law, not bad judge. (2)

Luthair (847766) | more than 2 years ago | (#41634625)

How do you know? People could be downloading their email locally but maintaining the copy on the server as backup.

Re:Bad law, not bad judge. (1)

DRJlaw (946416) | more than 2 years ago | (#41634811)

How do you know? People could be downloading their email locally but maintaining the copy on the server as backup.

But this one was not. From the linked article in the linked article:

Two Justices -- Justice Hearn, joined by Justice Kittredge -- argued that the Yahoo! e-mails were not in electronic storage because there was no evidence that Jennings had ever downloaded any other copies. Because there were no other copies, the copy stored with Yahoo! could not logically be a backup, as the word âoebackupâ presupposes the existence of another copy.

We know because the lawyers never made the argument despite the large red flag that was the Theofel v. Farey-Jones decision.

Re:Bad law, not bad judge. (1)

Cid Highwind (9258) | more than 2 years ago | (#41634939)

Then we're back to the justices being technologically illiterate. The only way a message stored on Yahoo's servers could ever have been read is if another copy is made on the recipient's machine (in his web browser or mail client). If they're not marked as read, they are in transit, and SCA applies. If they are marked as read, then there is (or at least was) a "primary" copy for them to be a "backup" of.

The copy on Yahoo MUST logically be a backup, because if something that is a backup while the original persists ceases to be a backup the instant the original is deleted (precisely when a backup is needed!) then "backup" as defined is meaningless.

Re:Bad law, not bad judge. (0)

Anonymous Coward | more than 2 years ago | (#41637739)

Google provides for both the primary storage and the backup storage. Google providing the backup is a very big reason why people use it. If there was some fear that Google could lose the data then people would go elsewhere for email.

Re:Bad law, not bad judge. (0)

Anonymous Coward | more than 2 years ago | (#41634657)

No, the court ruled correctly. The law has a very specific definition of stored communications, and as such only applies to backups and transient copies, not long-term hosted data. It's a stupid definition, but that's congress's fault not the judge's.

So the glaringly wide loop-hole to gain yourself protection would be: always mark all emails as "Unread" thus preserving the illusion of being a transient copy?

Re:Bad law, not bad judge. (1)

K. S. Kyosuke (729550) | more than 2 years ago | (#41634805)

In that case, the summary is wrong. It should have said "this doesn't qualify as the legal definition of electronic storage per Act XYZ". That this is, in fact, electronic storage to anyone with a brain and some command of English is kind of obvious.

Re:Bad law, not bad judge. (1)

stephanruby (542433) | more than 2 years ago | (#41635057)

No, the court ruled correctly. The law has a very specific definition of stored communications, and as such only applies to backups and transient copies, not long-term hosted data. It's a stupid definition, but that's congress's fault not the judge's.

Could you point to the "stupid" part of the definition? I'm just not seeing what you're seeing.

(A) any temporary, intermediate storage of a wire or electronic communication incidental to the electronic transmission thereof; and (B) any storage of such communication by an electronic communication service for the purposes of backup protection of such communication.
[source] [cornell.edu]

Also if you notice, you'll see that the South Carolina judges couldn't even agree on one majority opinion of why they ruled that way [volokh.com] , so their opinion is not going to be of much help to future courts.

Re:Bad law, not bad judge. (2)

TheGratefulNet (143330) | more than 2 years ago | (#41635453)

no, the court ruled incorrectly.

the original reason for courts is justice. NOT being a machine and following orders, mindlessly.

we keep forgetting why they are there. they are there to ensure a more just society.

following laws by the letter reduces us all to machines.

I don't think, at all, this was the intention of our body of laws. they were meant to help us encourage good behavior and discourage bad.

tell me now being a machine and simply parsing words (that were not accurate in their meaning) is 'justice' ?

I don't buy that the court's reason is to simply parse existing bad laws and derive more bullshit bad laws from it.

forrest and trees, people. forrest and trees.

Re:Wrong. (4, Funny)

Kenja (541830) | more than 2 years ago | (#41634495)

Dont be silly, its reality that's wrong.

Re:Wrong. (0)

Anonymous Coward | more than 2 years ago | (#41634927)

Wow. The entire South Carolina Supreme Court said that. Well then. That'll show 'em*!

*'em is limited to anyone in South Carolina who can't afford a lawyer who owns his own suit. Basically, what the S.Carolina court said was. "Feel free to kick this up to the feds, guys. We're done with it."

Wrong can be right (0)

Anonymous Coward | more than 2 years ago | (#41635273)

It's not wrong; it's jargon or technical terminology. And your profession can always define jargon, for use within that profession, to mean whatever-the-hell you want it to mean, regardless of whatever laypeople think it means.

  1. Your "server" doesn't bring food to your table.
  2. Your "desktop" may in fact have vanishingly small horizontal surface area
  3. Your Solid State "Disc" isn't circular
  4. Your "tree" contains no wood
  5. Your "pointer," if misused, can do bad things -- yet poking someone's eye out is almost never one of those bad things. That, of course, would be a "bug" even though it never flew or crawled.
  6. (I could go on with stuff like this forever...)

If this were the first time the courts recycled existing word to mean something very special, and even incompable with everyone else's language, it would be an outrage. But this has been happening since before you were born, and you're probably quite familiar with many situations where courts redefine words to mean weird things, but you're just so used to it that it doesn't stick out anymore.

So it sucks, but it's not factually wrong, because the whenever an authority defines a term, that becomes the term's definition.. um .. by definition.

Electronic storage isn't always necessarily an instance of "electronic storage."

Re:Wrong. (1)

RandomFactor (22447) | more than 2 years ago | (#41636277)

So a tomato IS a fruit?

Re:Wrong. (0)

Anonymous Coward | more than 2 years ago | (#41636349)

Yes, of course. Just like cucumbers.

Re:Wrong. (1)

mrbester (200927) | more than 2 years ago | (#41636973)

But not bananas.

Re:Wrong. (1)

hairyfeet (841228) | more than 2 years ago | (#41638255)

But you are assuming that they simply don't understand instead of understand and want to give the government a loophole which will all the rulings that seem to go out of their way to let the government ignore even the flimsy rules they have left? is probably not the right call.

I know all about the saying about malice and stupidity, but when you are dealing with a government that seems to be "Yay jackboots and spying!" no matter who sits in the big chair its probably safer just to assume malice until proven otherwise, that way you'll be more right than wrong.

South Carolina (1)

Anonymous Coward | more than 2 years ago | (#41634339)

Did that south carolina pageant girl get elected to the state's supreme court?

Law soup (0)

Anonymous Coward | more than 2 years ago | (#41634365)

The legal system is just fucked. Clearly. Why the fuck was this written in terms of a "backup?" So that original copies were not protected? It's legal to steal originals, but illegal to steal backups? WHY??????????? Clearly the intent of the law was lost here...

Electronic Mail not Stored Electronically? (1)

Anonymous Coward | more than 2 years ago | (#41634373)

And I says what?

Freedom of Contract? (1)

Anonymous Coward | more than 2 years ago | (#41634379)

So I can store my own email myself, but the court is forbidding me from contracting with anyone else to provide that service for me?

Too late to help that guy .... (1)

140Mandak262Jamuna (970587) | more than 2 years ago | (#41634381)

Remember that guy discovered that the zip code was the password Sarah Palin's yahoo account? Wasn't he jailed or something?

So if the phone hacking scandal that rocked (or still rocking) UK and News Corp, would not be illegal in the USA?

Wondering what would happen if that judge has a gmail/yahoo/hotmail (or more likely an AOL ) account, and it gets hacked and he gets his own ruling cited as the hacker walks away scot free.

Re:Too late to help that guy .... (1)

140Mandak262Jamuna (970587) | more than 2 years ago | (#41634471)

Re:Too late to help that guy .... (5, Funny)

Anonymous Coward | more than 2 years ago | (#41634627)

Mod me -1 Offtopic, but I have to ask: did you mix up the Username and Password fields when you registered?

Re:Too late to help that guy .... (0)

Anonymous Coward | more than 2 years ago | (#41634709)

You should actually be modded up for that. But the GP won't ever answer, I don't think...

Re:Too late to help that guy .... (2)

140Mandak262Jamuna (970587) | more than 2 years ago | (#41638453)

au contraire, my friend, that user name is quite carefully chosen. My collegemates will recognize me by my dorm addresses. My fellow alumi would recognize the dorm names and know my college.

Re:Too late to help that guy .... (0)

Anonymous Coward | more than 2 years ago | (#41638515)

According to your own link that guy was found "guilty on two counts: the felony of anticipatory obstruction of justice and the misdemeanor of unauthorized access to a computer" neither count of which has anything to do with the Stored Communication Act which is the concern of this Slashdot post. If you RTFA (I know, I know) then you would see that the Act in question was intended to apply to communications which were deliberately stored, and the court in this case found that leaving an email undeleted did not meet the specific definition of this specific Act.

Re:Too late to help that guy .... (0)

Anonymous Coward | more than 2 years ago | (#41634539)

Remember that guy discovered that the zip code was the password Sarah Palin's yahoo account? Wasn't he jailed or something?

Yes, he was indicted under a different statute [wikipedia.org] . There's no reason Holly Broome and those she aided couldn't be charged for the same things.

Declare (0)

WillRobinson (159226) | more than 2 years ago | (#41634391)

Politicians and bureaucrats are not citizens, therefore are not protected by the constitution. Therefore they are enemy combatants and should be sent to gitmo.

Leaving Email Online Poses Risks--Regardless (4, Informative)

Anonymous Coward | more than 2 years ago | (#41634403)

This case notwithstanding, leaving email stored online for over 180 days may be fair game anyway. The Electronic Communications Privacy Act (part of which is the "Stored Communications Act") only requires government warrants for materials stored less than 180 days. For materials over 180 days, a mere subpoena may suffice (See 18 USC 2703(a) and (b)). I diligently remove all email over 120 days old (just to be sure) on a regular basis.

Re:Leaving Email Online Poses Risks--Regardless (2, Insightful)

Anonymous Coward | more than 2 years ago | (#41634689)

Yes, because the 4th amendment authorizes the government to go after your stuff as soon as it's 180 days old.

NOT.

Government is out of control. The only possible reason people don't see this is because they're frighteningly stupid.

Re:Leaving Email Online Poses Risks--Regardless (0)

Anonymous Coward | more than 2 years ago | (#41637337)

It's not the government that's out of control it's just your paranoia.

Re:Leaving Email Online Poses Risks--Regardless (0)

Anonymous Coward | more than 2 years ago | (#41637503)

And yet, on cue, at every election, your family, your friends & yourself will vote into Government candidates from one of the 2 major parties.

It's our fault.

"Backup" (1)

Anonymous Coward | more than 2 years ago | (#41634411)

It is a backup... the other copy of the email is in my brain.

I feel bad for... (1)

fhuglegads (1334505) | more than 2 years ago | (#41634425)

...the person who has to transcribe my emails to paper and type them in when I want to read them.

Hmmm .... (2)

gstoddart (321705) | more than 2 years ago | (#41634465)

So all corporate data stored in the cloud not encrypted so much as to be unreachable is also fair game?

I can see a massive exodus from Cloud Computing if it's all fair game for law enforcement.

Welcome to the dystopian future, citizen.

Re:Hmmm .... (0)

Anonymous Coward | more than 2 years ago | (#41634829)

You would be surprised. A lot of people I know really don't care, and either say, "I'm doing nothing wrong", or "If I'm not doing a crime, I have zero to worry about."

In fact, I know very few users who actually download and copy off stored mail. Most tend to just leave it on the account in an archive pile.

The ideal would be a system like Hushmail [1], where LEOs can ask for a decryption key for a user's mailbox, but it won't work for anything other than that single user. Subsequent users would need subsequent search warrants from a judge who has juridiction over the ISP. As of now, LEOs can just grab what mail spools upon request. Forcing them to actually follow the law might be useful, especially with the fact that access given free to LEOs can be access freely granted to hackers or other criminals.

[1]: Yes, Interpol did get some mails from Hushmail, but those guys didn't have much of a choice in the matter. Even if the offenders did use the Java client, I'm sure the presiding judge would have forced HM to push out a backdoored version just for that one user to snatch a password.

If it's not electronic storage ... (0)

Anonymous Coward | more than 2 years ago | (#41634467)

then they should be able to retrieve it without the benefit of electronic tools, like, you know, computers ...

Congressional Ineptitude on the subject? (2)

TheGreatDuwanee (125985) | more than 2 years ago | (#41634473)

"...yet another reason why the Supreme Court (and/or Congress) should take up the issue of the Stored Communications Act."

I agree that this should be taken up and clarified in law, I'm just not so sure Congress is up to doing it right.

Is my skepticism showing through??

Courts cannot fix faulty statutes (3, Insightful)

DRJlaw (946416) | more than 2 years ago | (#41634493)

The ECPA refers to a defintion of "electronic storage" contained in the Wiretap Act (18 USC 2510, item (17) [cornell.edu] ) which was never intended to encompass cloud email:

(17) "electronic storage" means--
      (A) any temporary, intermediate storage of a wire or electronic communication incidental to the electronic transmission thereof; and
      (B) any storage of such communication by an electronic communication service for purposes of backup protection of such communication;

The court logically concluded that if the only copy of the received email is stored in a cloud email account, that copy is not stored for purposes of backup protection of such communication.

If you are one of those individuals who joyfully cries "RAID is not a backup," then you essentially agree with this court.

A court, even a Supreme Court, is not empowered to fix "bad statutes" by rewriting them. That pesky separation of powers doctrine requires that Congress pass legistlation to fix the defect, and the President sign that legislation, and no amount of wailing about the illogic of what the law "should be" versus what it is will change that requirement.

Re:Courts cannot fix faulty statutes (1)

whoever57 (658626) | more than 2 years ago | (#41634589)

(B) any storage of such communication by an electronic communication service for purposes of backup protection of such communication;

So, if I download my email via POP3 or IMAP, and leave a copy on the server, which is the backup? I could argue that the copy on the server is the backup, while my local copy is the primary. What a stupid law to distinguish between backups and original copies!

Re:Courts cannot fix faulty statutes (1, Insightful)

TheGratefulNet (143330) | more than 2 years ago | (#41634651)

the whole CONCEPT is absurd!

my communication is private. it does not matter where its placed, how long it sits there or how many distributed copies I have.

STUPID COURTS.

STUPID LAWS.

Re:Courts cannot fix faulty statutes (2)

DRJlaw (946416) | more than 2 years ago | (#41634659)

So, if I download my email via POP3 or IMAP, and leave a copy on the server, which is the backup?

According to the Ninth Circuit, the server copy.

Defendants point to these cases and argue that messages remaining on an ISP's server after delivery no longer fall within the Act's coverage. But, even if such messages are not within the purview of subsection (A), they do fit comfortably within subsection (B). There is no dispute that messages remaining on NetGate's server after delivery are stored "by an electronic communication service" within the meaning of 18 U.S.C. sec. 2510(17)(B). Cf. DoubleClick, 154 F.Supp.2d at 511 (holding that subsection (B) did not apply because the communications at issue were not being stored by an electronic communication service). The only issue, then, is whether the messages are stored "for purposes of backup protection." 18 U.S.C. sec. 2510(17)(B). We think that, within the ordinary meaning of those terms, they are.

An obvious purpose for storing a message on an ISP's server after delivery is to provide a second copy of the message in the event that the user needs to download it again -- if, for example, the message is accidentally erased from the user's own computer. The ISP copy of the message functions as a "backup" for the user. Notably, nothing in the Act requires that the backup protection be for the benefit of the ISP rather than the user. Storage under these circumstances thus literally falls within the statutory definition.

Of course, in the present case, the user did not download email by POP3 or IMAP, but used the system purely as webmail.

What a stupid law to distinguish between backups and original copies!

Which, as I pointed out in the GP post, is not something that the court is permitted to fix.

Re:Courts cannot fix faulty statutes (0)

Anonymous Coward | more than 2 years ago | (#41634869)

So does this mean the lesson here is to download all our messages by POP3 or IMAP so that the server copies are then backups and are protected communications?

Does this apply to Google Drive/SkyDrive/Dropbox type stored data as well?

Re:Courts cannot fix faulty statutes (1)

fynfuqbg (522423) | more than 2 years ago | (#41634921)

An obvious purpose for storing a message on an ISP's server after delivery is to provide a second copy of the message in the event that the user needs to download it again -- if, for example, the message is accidentally erased from the user's own computer. The ISP copy of the message functions as a "backup" for the user. Notably, nothing in the Act requires that the backup protection be for the benefit of the ISP rather than the user. Storage under these circumstances thus literally falls within the statutory definition.

Of course, in the present case, the user did not download email by POP3 or IMAP, but used the system purely as webmail.

To read his email the user has to download it with his webbrowser. If he wants to read his email again the browser will show the version kept in its local cahe. The copy kept by the webmail provider is clearly a back-up for the copy kept in the local cache of his webbrowser.

Re:Courts cannot fix faulty statutes (1)

mlts (1038732) | more than 2 years ago | (#41634901)

It looks like one of the best things to do for E-mail storage so backups are kept "in the cloud", but protected would be to have a large TrueCrypt volume on a box.net or Dropbox drive. In that volume would be someone's archived mail spool info, either the directories from Thunderbird, or PST files from Outlook.

Of course, contention issues come into play if one wants to access archived mail from multiple machines. Windows does not have a cluster file system (allowing multiple machines to mount the same LUN and use it), Linux has GFS2, and BSD/Solaris, clustering is built into ZFS so multiple boxes can mount a TC volume without getting in each other's way. Of course, then comes the application issues... I'm sure MS didn't design Outlook to be able to deal with multiple instances accessing the same PST at the same time.

If this was really a concern, probably the best answer would be to run your own mailserver with its own SSL key, encrypted hard disks, third party SMTP relay (to get around the dynamic IP blocks), and DynDNS functionality.

Re:Courts cannot fix faulty statutes (1)

Luthair (847766) | more than 2 years ago | (#41634645)

It could be ruled unconstitutional.

Re:Courts cannot fix faulty statutes (1)

DRJlaw (946416) | more than 2 years ago | (#41634693)

It could be ruled unconstitutional.

On what grounds?

Authority -- commerce clause; email is predominantly interstate.

Equal protection -- who does it discriminate against and how does the disparate effect relate to a protected class?

Other?

"Unconstitutional" is not a card you can whip out the moment that you disagree with a law...

Re:Courts cannot fix faulty statutes (1)

Luthair (847766) | more than 2 years ago | (#41634911)

You misunderstand, I was simply pointing out that the court has the power to invalidate if they feel its unconstitutional.

POP vs IMAP (0)

Anonymous Coward | more than 2 years ago | (#41634685)

And if you are one of the myriad of individuals whose email provider withdrew POP access to force you to IMAP, then you're also screwed because now you CANNOT delete an email from the providers copy of your inbox without also deleting it from your copy of your inbox.

For us longtime MobileMe subscribers we could still use POP until around the time iCloud debuted and then Apple deployed bug fix updates that withdrew POP access.

Re:POP vs IMAP (1)

Mabhatter (126906) | more than 2 years ago | (#41638777)

That might be the quickest way to get action on this! After all, most companies use Exchange (IMAP). So what you are saying is that anybody running IMAP is not "really" reading emails, so corporate emails don't need subpoenas or warrants!

Re:Courts cannot fix faulty statutes (1)

ScooterComputer (10306) | more than 2 years ago | (#41634763)

The job of judges -IS-, absolutely, to apply the intent of applicable statue to the changing of the times. Clearly, the statute was intended to secure communication while in transit and where it is stored AFTER the traditionally defined (in wiretap terms) concept of "delivery"it was admittedly written in a time where the download and RE-upload of communication for "backup protection" was commonplace. However, technology has shifted; there is no longer the need to download and re-upload, what GETS downloaded is the "transient", temporary state. In wiretap parlance, once a communique is delivered, it is the responsibility of the addressee to henceforth protect it. (Same concept with a physical letter!) In traditional email systems, wiretap would not apply if the Wife had sneakily dug into the MBOX or PST files on the guys computer (because he was responsible for securing those files). But current technology performs both the "backup protection" storage AND viewer task simultaneously; the need for the addressee to take physical possession of the communique is negated.

These judges muffed it. Clearly, anyone who uses and relies upon web-based (transient) interaction for email purposes is EXPLICITLY relying on the storage of that communication for purposes of backup protection. Otherwise, the providers of the service would just throw it away and save the bits, or never provide a Trash.

Also, wat gets labeled "judicial activism" is when Judges creatively use legislation to either bolster or deny behavior in tangential and non-intentional ways. Like applying DUI laws to bicycles. Clearly, when the 'D' in DUI stands for "DRIVING", and the code is enforced under MOTOR VEHICLE CODE, being a drunk moron on a bike shouldn't come under that statute.

Re:Courts cannot fix faulty statutes (2)

DRJlaw (946416) | more than 2 years ago | (#41634971)

The job of judges -IS-, absolutely, to apply the intent of applicable statue to the changing of the times.

Yeah... the absolutely part... no attorney who has studied constitutional law is going to buy that. The "living constitution" (and analogous "living statute") theory of legal interpretation is one of many, and is quite open to philosophical debate.

You're also going to have a hard time convincing many people that the "intent of [the] applicable statute" evolves over time in an undefined way rather than being fixed by the legislature that enacted the law. That is sort of mushiness that the strict constructionists are rejecting -- rather they argue that a circumstance either fits within the text or it does not. Then you have the "originalists" who think that regadless of the breadth of the text, you only implement the intent of the enacting legislature that fits within it.

It's a continuum, and to claim that the judges miffed it you must claim, as you apparently do, that no method of interpretation could possibly be right except for yours. The problem is, that claim is ridiculous on its face.

Re:Courts cannot fix faulty statutes (1)

Bucc5062 (856482) | more than 2 years ago | (#41635197)

So I guess this action [inquisitr.com] would also fall under the "your kidding" option or how does one drive a horse. Perhaps they should change the law to just OUI (easy to suss out).

Re:Courts cannot fix faulty statutes (2)

Terrasque (796014) | more than 2 years ago | (#41635285)

That is .. very silly indeed.

It's a bit like defining a home as where you sleep, and further defining that the only thing that thus needs warrant to search is your bed mattress and blankets.

Or define vehicle as "Ferrari, horse, horse wagon and steam wagon".

Or maybe define the president as whoever sits in the president's chair in the oval office...

Whoever wrote those "laws" are crazy, and should be in a mental hospital somewhere, not writing .... that stuff. *sigh*

Re:Courts cannot fix faulty statutes (1)

blade8086 (183911) | more than 2 years ago | (#41638965)

If you have to download every message to read it (or to view the subject), and then delete this copy when you close your browser tab,
guess what - the server copy just became a backup of what you had stored on your computer while you were reading it.

Also - how many people keep their email in yahoo mail 'because they would rather have it there as a backup'
than to 'have it on their own device where they could lose the data' ?

If you have a badly implemented backup policy, where does your *intent* to have it *be* a backup enter into the equation?

Or are the courts going to start deciding our backup policies for us?

you sir, are wrong, and playing phony (not legitimate) legalese and word games, just like the court did here.

So don,t "open" any emails stored online? (0)

Anonymous Coward | more than 2 years ago | (#41634743)

From the actual ruling "We decline to hold that retaining an opened email constitutes storing it for backup"

So a way to cause all sorts of problems for this ruling would be to use an email client that never tells the ISP the email was Opened. if the ISP does not know if the email was opened it would be in the position to assert that the emails still falls under the ruling that the storage is "incidental to the electronic transmission thereof"

Also what kind of havoc would changing all emails to "unread" cause? Are they going to demand to see access logs to see if you retrieved the emails, then how could they proved that just because it was retrieved that it was also "Opened". It would be interesting to see the legal definition of "Opened" as applied to electronic mediums and even physical mediums. Is a physical letter legally considered read as soon as it is placed in my mail box?

Being from South Carolina (1)

GodfatherofSoul (174979) | more than 2 years ago | (#41634813)

You might want to take a few hours to explain what "cloud" means in this context.

The implications are that it is legal to .. (0)

Anonymous Coward | more than 2 years ago | (#41634883)

Have I missed something,

The implications of this article is that it is legal to read someone's email before (after) they have read it as long as you read it on the transmissions channel

That is far more worrying then quibling over the definition of electronic storage.

It's just a formality (1)

erroneus (253617) | more than 2 years ago | (#41634885)

We have seen it and we will keep seeing it until there is a major change of government in the U.S.

They write laws governing us and laws governing them [government and business]. The laws governing either are managed inconsistently. (That's the nicest way I know how to put it) The laws governing government are all but completely ignored. Constitutional issues never make it to the courts for challenge. They redefine reality in all areas of government. In this case, they say email is not "e" (electronic) and not storage. Sorry, but what?! These guys are not even pretending to hide their corruption or their agendas. They want unfettered access to our data and they are getting it.

It's just a formality that a judge is declaring email not electronic storage. They ALREADY have access to all electronic communications and all storage. They HAVE IT. They may or may not deny it. When the truth comes out, "retroactive immunity" is the response. FOIA requests are blocked forever.

How much clearer does it have to be?

They aren't our government any longer. They are our masters.

Re:It's just a formality (1)

JDG1980 (2438906) | more than 2 years ago | (#41635391)

It's just a formality that a judge is declaring email not electronic storage. They ALREADY have access to all electronic communications and all storage. They HAVE IT. They may or may not deny it.

No, it is not just a formality. They may have it anyway, but they can't use it as evidence in court if it is illegally obtained.

Re:It's just a formality (1)

erroneus (253617) | more than 2 years ago | (#41635777)

I guess you;ve never heard od the other end-runs they pull off. "Enemy combatant" is a buzz word they use to strip anyone and everyone of constitutional guarantees and even of "human rights." They don't need law or trials or anything to 'disappear' people.

Before anything gets done about it, we have to start acknowleding what we see. And most of it is in plain sight.

Re:It's just a formality (0)

Anonymous Coward | more than 2 years ago | (#41636303)

Enemy combatants are not normal case situations. They are part of war. Remember we let anything and everything be called a war and under that metaphor we've let them apply war-think to more and more off topic situations.

The military is supposedly banned inside the country; so, you use state guards or train and arm the police to act like the military. So I don't see them needing to change that one, they are move around it.

We are in a "war" two of them; a occupation one which was a real war and the metaphorical "war on teraism". Which has been used, building upon stuff Bush helped craft (didn't use, but DID argue he could if he wanted) which Obama foolishly took advantage of. He is just as untouchable as Bush; well not as much because he is black and not connected to the ruling class by a dynasty. Either way, they claim there fake wars are legally real wars just as corporations are legally humans and nobody can expect future presidents to do jack about it unless the public retakes reality from these evil lawyers and their idiotic logic games.

Re:It's just a formality (1)

erroneus (253617) | more than 2 years ago | (#41636509)

Did you miss the part where the occupy movement has been listed as low level terrorists?

Re:It's just a formality (0)

Anonymous Coward | more than 2 years ago | (#41637985)

Well seeing all the vandalized damage they leave behind i say that's a very accurate definition.

I'm confused (2)

davidwr (791652) | more than 2 years ago | (#41635641)

If I haven't downloaded my mail, then it's still in transit.

If I have downloaded my mail, then it's a backup.

If I've read my mail but not downloaded it, oh, wait, that's physically impossible, so it must be either in transit or it's a backup.

But it's neither a backup nor in transit, according to the court.

Help!

In Carolina (0)

Anonymous Coward | more than 2 years ago | (#41635899)

Google's data centres are steam powered....

MegaUpload (0)

Anonymous Coward | more than 2 years ago | (#41636041)

So.... doesn't that mean the data on MegaUpload was also not stored there?

Don't tell me that this is another case of when-its-convenient-to-be-the-one, it's the one and when-it's-convenient-to-be-the-opposite, it's the other?

Re:MegaUpload (1)

CanEHdian (1098955) | more than 2 years ago | (#41638971)

So.... doesn't that mean the data on MegaUpload was also not stored there?

Don't tell me that this is another case of when-its-convenient-to-be-the-one, it's the one and when-it's-convenient-to-be-the-opposite, it's the other?

Of course the ELECTRONIC data was STORED on MegaUpload... how else were copyrights infringed upon?!

Let me spill the beans on Dotcom's new revived version: KimsMegaMail!

You send an e-mail with attachment to mega@kimsmegamail.com, you get a confirmation email back from say eZf9vvwPrK23z@kimsmegamail.com. You give this e-mail address to your friend, post it online, etc. Everyone that sends an e-mail to that address, gets an e-mail back with that same attachment. On a premium account this is forever, free accounts for 30 days after the last activity.

The servers are OK and protected from the RIAA/MPAA's talons as they do not "store" anything.

Again the retards on our courts (0)

Anonymous Coward | more than 2 years ago | (#41636675)

Can not see the obvious for less than humanitarian reasons.
Corruption at the highest levels of government is the one an only reason for this.

Mu$t $uck to be on U$A... (0)

Anonymous Coward | more than 2 years ago | (#41636963)

'merica, land of "freedom".

"I don't bother downloading every email I receive" (1)

John Hasler (414242) | more than 2 years ago | (#41637043)

If you read it you do. You cannot read it without downloading it. What you mean is that you do not create a local permanent copy of every email you read.

I think I would appeal that. (1)

aklinux (1318095) | more than 2 years ago | (#41637995)

If they were emails left in my Inbox, they might have a case. Maybe. And if they are ones left in my Inbox, it's likely I haven't figured out what to do with them and really don't care about the privacy asspect of them. I just have a difficult time throwing stuff away.

Email that I consider important is also keep on Gmail, even after I've read it. I also have it sorted into separate folders similarly to how one would put them in a filing cabinet. They are there specifically for archival/documentation purposes.

Time to Fire a judge (0)

Anonymous Coward | more than 2 years ago | (#41638565)

How do we do that! this guy is clueless.

South Carolina is a bunch of assholes (0)

Anonymous Coward | more than 2 years ago | (#41638717)

They are not the United States of America. Just ask them.

They are confederate cotton pickers. They're inbred redneck monkeys. The south will never rise again, it never really did. They are already the slaves of modern America and they're too fucking stupid to even know it.

Check yo jurisdiction (1)

guimus (2751609) | more than 2 years ago | (#41638745)

No one outside of South Carolina (or inside South Carolina, except for the rare occasion where you're bringing up federal discovery rules in state court) should care what the Supreme Court of South Carolina says about a federal statute.

We are a nation of retards (1)

gelfling (6534) | more than 2 years ago | (#41639083)

Give up, close it all down, we're done. Let's go kill ourselves.

Southern fried idiots. (-1)

Anonymous Coward | more than 2 years ago | (#41639173)

If you have not lived in the southeastern US it is unlikely you would be able to
grasp just how far stupidity reaches up the food chain.

Even the smarter people are stupid.

This decision by the court is an example of people who are so stupid
and so ignorant they are not even able to understand that they are
not qualified to make such decisions because they lack the knowledge.

herp (1)

Legion303 (97901) | more than 2 years ago | (#41639461)

derp.

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