Yesterday the Fifth Circuit ruled in Garcia v. City of San Laredo that personal cell phones are not “facilities” under the Stored Communications Act (SCA), agreeing with a growing number of courts that have reached the same conclusion. In reaching this decision, the court rejected the claim of plaintiff Garcia, a former police dispatcher for the City of San Laredo, that the City had improperly accessed text messages and images stored on her cell phone in violation of the SCA.
Generally speaking, to be liable under the SCA, a defendant must have gained unauthorized access to a facility through which an electronic communication service is provided (or exceeded authorized access) and must thereby have accessed electronic communications while held in electronic storage.
In interpreting the meaning under the SCA of the phrase “facility through which an electronic communication service is provided,” the Fifth Circuit observed that past cases holding that the SCA covered the seizure of a computer used to operate an electronic bulletin board system or applying the SCA to internet service providers were “not helpful” to plaintiff establishing that an individual’s computer, laptop, or mobile device fits the statutory definition. Rather, the court looked to the Eleventh Circuit’s decision in United States v. Steiger, which held that a hacker’s access of an individual’s computer hard drive was beyond the reach of the SCA. The Garcia court also agreed with the conclusions of a number of district courts (including Judge Lucy Koh’s decision in in re iPhone Application Litigation, which we wrote about here), that the relevant “facilit[ies'” 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 communications.
The Garcia court further held that even if plaintiff’s cell phone somehow were considered to be a “facility” under the statute, her text messages and photos still would not fall under the SCA’s precise definition of “electronic storage,” a term which, the Fifth Circuit explained “emcompasses only the information that has been stored by an electronic communication service provider.”