Employers need to exercise care when accessing employees’ e-mails, particularly e-mails on personal e-mail accounts. In Pure Power Boot Camp Inc. v. Warrior Fitness Boot Camp LLC, a non-compete case that turned into a case about the privacy of stored e-mails and violations of the federal Stored Communications Act (SCA), the court held:
The dispute arose when two employees of a fitness facility, Pure Power Boot Camp Inc., left to start their own fitness facility, Warrior Fitness Boot Camp LLC. A non-compete action followed because Pure Power learned through 546 mails it had accessed over a nine-day period that its former employees had taken customer lists, training and instruction materials, and solicited Pure Power customers. The e-mails were from four personal accounts belonging to the former employees’ – Hotmail, Gmail, Warrior Fitness, and an unrelated corporate account. Pure Power was able to access these accounts because the former employees stored their usernames and passwords on its computers; when Pure Power accessed the particular site, the username and password automatically populated.
The former employees learned of Pure Power’s accessing their personal e-mail accounts and filed counterclaims, including allegations of violations of the Stored Communications Act.
The court ruled in the non-compete action that accessing the former employees’ four accounts violated the SCA. Two of the issues before Judge Theodore H. Katz were whether statutory damages could be recovered in the absence of actual damages and, if so, how to calculate those damages. The SCA provides that “in no case shall a person entitled to recover receive less than the sum of $1,000,” but there is little guidance as to whether this minimum should be awarded for each violation, or what constitutes distinct and independent violations as opposed to a single continuous violation.
SCA Statutory Damages Without Actual Damages. Judge Katz disagreed with a ruling by the Fourth Circuit of the U.S. Court of Appeal, Van Alstyne v. Elec. Scriptorium, Ltd. 560 F.3d 199 (4th Cir. 2009), which held that statutory damages under the SCA can be recovered only where the plaintiff also has suffered actual damages.
Van Alstyne based its holding (i) on a decision by the U.S. Supreme Court in Doe v. Chao, 540 U.S. 614 (2004), which reached a similar conclusion for statutory damages under the Privacy Act of 1974, and (2) on the fact that the language concerning damages in these two statutes (SCA and Privacy Act) were nearly identical.
However, Judge Katz cited a number of other federal court decisions holding that while the language in the two statutes are similar, they are different statutes with different purposes and penalize different behaviors. Rejecting the Doe analysis, he concluded statutory damages were recoverable for SCA violations in the absence of actual damages.
Calculating Statutory Damages. Judge Katz said the SCA punishes 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.” 18 U.S.C. Section 2701(a). Based on this language, he rejected the two former employees’ argument that the number of violations should be measured by the number of e-mails accessed, 546, adopting Pure Power’s argument, instead. Accordingly, when an account is accessed multiple times over a short period of time, it should constitute only a single violation of the SCA. Noting the SCA targets the unauthorized access of an electronic communication facility (not the e-mails themselves), and because there was nothing to indicate the number of times each of the four accounts were accessed over the short nine-day period, the court found four violations.
Joseph J. Lazzarotti is a principal in the Berkeley Heights, New Jersey, office of Jackson Lewis P.C. He founded and currently co-leads the firm’s Privacy, Data and Cybersecurity practice group, edits the firm’s Privacy Blog, and is a Certified Information Privacy Professional (CIPP)…
Joseph J. Lazzarotti is a principal in the Berkeley Heights, New Jersey, office of Jackson Lewis P.C. He founded and currently co-leads the firm’s Privacy, Data and Cybersecurity practice group, edits the firm’s Privacy Blog, and is a Certified Information Privacy Professional (CIPP) with the International Association of Privacy Professionals. Trained as an employee benefits lawyer, focused on compliance, Joe also is a member of the firm’s Employee Benefits practice group.
In short, his practice focuses on the matrix of laws governing the privacy, security, and management of data, as well as the impact and regulation of social media. He also counsels companies on compliance, fiduciary, taxation, and administrative matters with respect to employee benefit plans.
Privacy and cybersecurity experience – Joe counsels multinational, national and regional companies in all industries on the broad array of laws, regulations, best practices, and preventive safeguards. The following are examples of areas of focus in his practice:
Benefits counseling experience – Joe’s work in the benefits counseling area covers many areas of employee benefits law. Below are some examples of that work:
Joe speaks and writes regularly on current employee benefits and data privacy and cybersecurity topics and his work has been published in leading business and legal journals and media outlets, such as The Washington Post, Inside Counsel, Bloomberg, The National Law Journal, Financial Times, Business Insurance, HR Magazine and NPR, as well as the ABA Journal, The American Lawyer, Law360, Bender’s Labor and Employment Bulletin, the Australian Privacy Law Bulletin and the Privacy, and Data Security Law Journal.
Joe served as a judicial law clerk for the Honorable Laura Denvir Stith on the Missouri Court of Appeals.