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Current Developments in the Commercial Divisions of the
New York State Courts
Posted: September 27, 2014

Cell Phone Not Within Scope of Stored Communications Act

On September 10, 2014, Justice Oing of the New York County Commercial Division issued a decision in Advanstar Communications Inc. v. Pollard, 2014 NY Slip Op 32398(U), dismissing on summary judgment a claim for violation of the Stored Communications Act.

In Advanstar Communications, an employer alleged misconduct by its former employee. The defendant sought summary judgment on his counterclaims for trespass to chattels, violation of the Stored Communications Act (18 USC ยง 2701[a]), and conversion, “all related to” the plaintiff’s “remote wiping of his iPhone and the loss of his personal information and data” when he left the plaintiff’s employ to work for a competitor. The court denied the motion on all three claims. It explained, with respect to the Stored Communications Act counterclaim:

Section 2701(a) of the Stored Communications Act provides for criminal and civil liability by whoever:

(1) intentionally accesses without authorization a facility through which an electronic communication service is provided; or

(2) intentionally exceeds an authorization to access that facility; and thereby obtains, alters, or prevents authorized access to a wire or electronic communication while it is in electronic storage in such system.

“Electronic communication service” is defined as “any service which provides to users thereof the ability to send or receive wire or electronic communications.” “Electronic storage” is defined as “(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.” “Facility” is not defined by the section.

[The defendant] argues that an iPhone constitutes a “facility through which an electronic communication service is provided” under section 2701(a) of the Stored Communications Act. While section 2701(a) does not provide a definition of “facility”, it has been found to apply to pagers (United States of America v Reyes, 922 F. Supp 818 [SD NY 1996]). [The defendant] contends that because a smart phone performs the same functions as a pager, this Court should find that [the defendant’s] iPhone is a “facility” under section 2701(a). As such, [the defendant] argues counterclaim defendants’ liability is clear given that there is no dispute that counterclaim defendants intentionally accessed his iPhone, and that Loggia directed [the plaintiff’s] employees to conduct a wipe of his iPhone. Further, [the defendant] maintains that the evidence unequivocally shows that he never authorized counterclaim defendants to access and delete the data stored on his iPhone.

[The defendant’s] reading of section 2701(a) is unavailing. Recent federal court decisions have given a more thorough analysis of the application of section 2701(a) to cell phones and personal computers, and have determined that a cell phone is not a “facility through which and electronic communication service is provided” nor is the information on a cell phone in the form of
emails, text messages, pictures and the like considered “in electronic storage.”

In addition, contrary to [the defendant’s] argument, the data on his personal iPhone do not fall within the definition of “electronic storage” as required under section 2701(a)[2]. In that regard, Garcia v City of Laredo, supra, provides clear guidance on this issue:

“Electronic storage” as defined encompasses only the information that has been stored by an electronic communication service provider. Thus, information that an Internet provider stores to its servers or information stored with a telephone company – if such information is stored temporarily pending delivery or for purposes of backup protection – are examples of protected electronic storage under the statute. But information that an individual stores to his hard drive or cell phone is not electronic storage under the statute.

[The defendant’s] continued reliance on Reyes, supra, does not alter this finding. Indeed, such reliance is misplaced. In Reyes, the District Court found that the act of retrieving numbers from a pager’s memory that had not yet been read or retrieved by the intended recipient is akin to accessing electronic communications that are in electronic storage, and by doing so, constitutes accessing stored electronic communications. Here, [the defendant] does not allege that counterclaim defendants accessed the information or data on his iPhone that he had not yet read or received. Rather, [the defendant] is claiming that counterclaim defendants conducted a remote sweep of his cell phone, thus wiping out information and data he had stored on his phone. Rather, the facts of his case are more analogous to the facts of the recent federal cases referred to by counterclaim defendants wherein the federal courts found that accessing information and data stored on a personal computer or cell phone does not fall within the purview of section 2701.

(Internal quotations and citations omitted) (emphasis added).

While the employer avoided summary judgment here, this decision illustrates one of the many issues arising from mixed business and personal use of electronic equipment.

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