Stored Communications Act

By Katherine Gasztonyi

Last week, Judge Robinson of the District of Delaware dismissed a multi-district lawsuit claiming that Google, Vibrant Media, Media Innovation Group, and WPP violated federal privacy and computer security laws by allegedly circumventing browser privacy settings in order to track users online.

This lawsuit stems from a February 17, 2012, Wall Street Journal article describing these companies’ use of a loophole in Safari’s privacy settings to set third-party tracking cookies even where the browser had been configured to block such cookies.  Lawsuits alleging violations of the federal Wiretap Act, Stored Communications Act, and Computer Fraud and Abuse Act (as well as various state laws) were filed in courts across the country, and ultimately were consolidated before Judge Robinson in Delaware.

Judge Robinson granted the defendants’ motions to dismiss all of the plaintiffs’ claims on the grounds that the plaintiffs had not adequately alleged standing to sue in federal court and, in any event, had failed to state a claim for relief under any of the statutes invoked in their complaint.


Continue Reading Court Tosses Claims Against Google and Others Based on Safari Hack

A New Jersey federal court recently held that an employee’s Facebook wall posts were protected by the Stored Communications Act (“SCA”), 18 U.S.C. § 2701 et seq., in one of the first cases to analyze the SCA’s application to the Facebook wall.  Ehling v. Monmouth-Ocean Hospital Service Corp.., No. 2:11-cv-3305 (WMJ) (D.N.J. Aug. 20, 2013).  An important factor in the court’s ruling was the fact that the employee had configured her privacy settings to restrict her posts to her Facebook “friends.”

The court found that the employer had not violated the SCA by viewing the employee’s wall, however, because a co-worker, who was one of her Facebook friends, showed the post to their employer without any prior prompting by the employer.  

This ruling provides further reason for employers to avoid unauthorized access to an employee’s social media activities.  The court’s holding is consistent with the passage by 11 states of laws prohibiting employers from demanding social media passwords from employees.  But employers that learn of social media activity by employees through passive means may still be able to take action based on that information.


Continue Reading Federal Court Finds Stored Communications Act Applies to Facebook Wall Posts

Earlier this week, Twitter appealed a New York state judge’s ruling that required the company to produce an Occupy Wall Street protestor’s tweets, email address, and certain subscriber information.  The trial court judge had reasoned that the public nature of Twitter meant that the defendant lacked privacy interests in his tweets and that the government’s

Twitter has announced that it will appeal a New York state judge’s ruling that the company must hand over an Occupy Wall Street protestor’s tweets to the Manhattan district attorney.  The defendant was charged with disorderly conduct for his participation in a protest march in October 1, 2011.  Following that incident, the district attorney subpoenaed Twitter for the defendant’s tweets over several months in the fall of 2011.  The defendant unsuccessfully challenged the subpoena in trial court, and Twitter is taking up the appeal.    

The trial court judge found that the Fourth Amendment did not apply to the government’s subpoena.  The defendant had no privacy interests in his tweets, the judge held, because of the public nature of the Twitter platform.  Pointing out that the “very nature and purpose of Twitter” is to share messages with a broad online audience, the judge concluded that the “defendant’s contention that he has privacy interests in his Tweets . . . [is] without merit.”


Continue Reading Twitter to Appeal NY Ruling that It Must Hand over Occupy Protestor’s Tweets

By: Shel Abramson

The United States District Court for the Northern District of California recently dismissed with prejudice most claims asserted by consumer plaintiffs in In re iPhone Application Litigation, including causes of action under the Stored Communications Act (“SCA”), the Wiretap Act, and other federal and state laws.  Plaintiffs asserted that Apple and a group of “Mobile Industry Defendants,” including Google, violated federal and state laws by allowing third party applications for “iDevices”—the iPhone, iPad, and iPod Touch—to collect and use plaintiffs’ personal information without consent.  This personal information included geolocation information, the iPhone’s unique device identifier (UDID), and other consumer information, such as age or gender.  Two separate putative classes of plaintiffs brought claims against Apple—an iDevices Class and a Geolocation Class.  With respect to defendant Apple, Judge Lucy H. Koh dismissed all of plaintiffs’ claims with prejudice, except for two California state law claims.  All claims against the Mobile Industry defendants were dismissed with prejudice.

In rejecting the SCA and Wiretap claims, Judge Koh provided a thorough analysis of why plaintiffs’ theories did not comport with these complex and specific statutes.  If followed by other courts, this precedent could have a far-reaching effect in limiting plaintiffs’ ability to use these federal statutes to pursue alleged harms arising out of online data collection and use.  We examine Judge Koh’s discussion in some detail after the jump.


Continue Reading Key Holdings in the In re iPhone Application Dismissal Order

Government officials must seek a warrant to compel the disclosure of cell phone location data, a federal district court ruled, holding that a federal law allowing the government to obtain some information without a warrant violates the Fourth Amendment.

In a one-page order upholding a magistrate judge’s decision, U.S. District Judge Lynn N. Hughes, of the Southern District of Texas, held Nov. 11 that records showing the “date, time, called number, and location of the telephone when the call was made” are constitutionally protected, and thus the government needs a warrant based on probable cause to compel the disclosure of such data. That standard is higher than the standard required for a court order under the Stored Communications Act, which requires a government entity to demonstrate that there are “specific and articulable facts showing that there are reasonable grounds to believe” the contents of or records about an electronic communication are “relevant and material to an ongoing criminal investigation.”


Continue Reading Federal Court Finds Warrant Required to Obtain Cell-Phone Locations