Keep Out Of Stored Communications Unless You Are Certain You Have Permission
Imagine you’re an employer. Your employee has a company computer and has created a Gmail account that he uses for both business and personal matters. You have not adopted a written email or computer use policy for the business. The employee violates company policy by sending an unauthorized personal email utilizing his official company title and you terminate him for that. After termination, you access his company computer using a company password and you search the Gmail account the employee created. The employee is not asked for, and does not give, permission to access the account.
Do you the employer have a problem in this situation?
Imagine you are the wife in a nasty divorce. You know that soon to be ex-husband is lying to you and to the court about the value of the business he has built during the many years of marriage. Ex gave you his password to the company computer years ago as part of his promise to be transparent. He has obviously forgotten he did so because the password has not changed through the years. You ask your lawyer if it’s OK to look at Ex’s emails and the lawyer says “no problem but don’t look at communications between Ex and his lawyer.” Ex’s emails are hosted through a third party service. Through your efforts you find a trove of emails and information which you use to convince the court that Ex is deceiving the court as well as trying to deceive you. The court awards you millions as your share of the business.
Does this scenario create a problem for the ex-wife?
In both cases above, the answer is that a jury is allowed to decide whether there is liability for damages under the federal Stored Communications Act (SCA). Florida has a state statute which mirrors the SCA in many but not all respects.
The SCA creates criminal and civil liability for anyone who intentionally accesses without authorization a facility through which an electronic communication service is provided and thereby obtains access to a wire or electronic communication while it is in electronic storage.
Criminal penalties include fines and/or imprisonment (up to 5 years for a first offense)!
Civil remedies include injunctive relief, actual damages, statutory damages, punitive damages and an award of attorney’s fees.
Actual permission to access stored communications is a difficult issue that should be clearly delineated BEFORE any actual need for access arises. If in doubt, STAY OUT!
Jeff Fridkin is a founding member of Grant Fridkin Pearson, P.A., and has practiced law in Southwest Florida since 1985. He has for 25 years maintained an AV rating from Martindale-Hubbell and is Florida Bar Board-Certified in Civil Trial and Business Litigation.